EXECUTION COPY
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DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
DEPOSITOR
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
SERVICER
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
SPECIAL SERVICER
WELLS FARGO BANK MINNESOTA, N.A.,
AS TRUSTEE
LASALLE BANK NATIONAL ASSOCIATION,
AS BOND ADMINISTRATOR, PAYING AGENT AND COMPANION PAYING AGENT
GERMAN AMERICAN CAPITAL CORPORATION,
AS HOLDER OF THE ALLIANCE COMPANION LOAN
AND THE CRYSTAL PARK COMPANION LOAN
and
L-O BROADWAY INVESTMENTS, INC.,
AS HOLDER OF THE CROWN PLAZA COMPANION LOAN
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POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
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COMM 2000-C1
Commercial Mortgage Pass-Through Certificates
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<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms..................................................
Section 1.02 Certain Calculations...........................................
Section 1.03 Certain Constructions..........................................
Section 1.04 Certain Calculations with respect to Loan Pairs and
Companion Loans..............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans and Loan REMIC Interests;
Assignment of Mortgage Loan Purchase Agreements..............
Section 2.02 Acceptance by Custodian and the Trustee........................
Section 2.03 Representations, Warranties and Covenants of the Depositor;
Repurchase and Substitution of Mortgage Loans................
Section 2.04 Representations, Warranties and Covenants of the Servicer,
Special Servicer, Trustee and the Bond Administrator.........
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.................................
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions...............
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Servicer to Act as Servicer; Administration
of the Mortgage Loans........................................
Section 3.02 Liability of the Servicer......................................
Section 3.03 Collection of Certain Mortgage Loan Payments...................
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..............................................
Section 3.05 Collection Account; Interest Reserve Account; Upper-Tier
Distribution Account, Lower-Tier Distribution Account and
Excess Liquidation Proceeds Account..........................
Section 3.06 Permitted Withdrawals from the Collection Account; Trust
Ledger; Companion Ledgers; Companion Distribution Account....
Section 3.07 Investment of Funds in the Collection Account, the REO
Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account, the Lock-Box Accounts, the
Cash Collateral Accounts and the Reserve Accounts............
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage..............................
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions........................................
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage Loans..........
Section 3.11 Trustee to Cooperate; Release of Mortgage Files................
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation.................................................
Section 3.13 Reports to the Bond Administrator; Collection Account
Statements...................................................
Section 3.14 Annual Statement as to Compliance..............................
Section 3.15 Annual Independent Public Accountants' Servicing Report........
Section 3.16 Access to Certain Documentation................................
Section 3.17 Title and Management of REO Properties and REO Account
Properties...................................................
Section 3.18 Sale of Specially Serviced Loans and REO Properties............
Section 3.19 Additional Obligations of the Servicer and Special Servicer;
Inspections..................................................
Section 3.20 Authenticating Agent...........................................
Section 3.21 Appointment of Custodians......................................
Section 3.22 Reports to the Securities and Exchange Commission; Available
Information....................................................
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts................................
Section 3.24 Property Advances..............................................
Section 3.25 Appointment of Special Servicer................................
Section 3.26 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report................
Section 3.27 Approval Rights by the Special Servicer with Respect
to Non-Specially Serviced Loans................................
Section 3.28 Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Mortgage Loans..............
Section 3.29 Limitations on Rights of Controlling Class or Directing
Certificateholder with Respect to the Loan Pairs.............
Section 3.30 Modification, Waiver, Amendment and Consents...................
Section 3.31 Right to Appoint Operating Advisor; Authority of
Operating Advisor............................................
<PAGE>
Section 3.32 Assignment of Right to Vote Claims of Companion
Holders in Bankruptcy........................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions..................................................
Section 4.02 Statements to Certificateholders; Reports by Bond
Administrator; Other Information Available to the Holders
and Others...................................................
Section 4.03 Compliance with Withholding Requirements.......................
Section 4.04 REMIC Compliance...............................................
Section 4.05 Imposition of Tax on the Trust Fund............................
Section 4.06 Remittances; P&I Advances......................................
Section 4.07 Grantor Trust Reporting........................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates...............................................
Section 5.02 Registration, Transfer and Exchange of Certificates............
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..............
Section 5.04 Appointment of Paying Agent....................................
Section 5.05 Access to Certificateholders' Names and Addresses..............
Section 5.06 Actions of Certificateholders..................................
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 or Consolidation of the Servicer........................
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others...................................................
Section 6.04 Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the Special
Servicer.....................................................
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer..............................
Section 6.06 Servicer or Special Servicer as Owner of a Certificate.........
ARTICLE VII
DEFAULT
Section 7.01 Events of Default..............................................
Section 7.02 Trustee to Act; Appointment of Successor.......................
Section 7.03 Notification to Certificateholders and Other Persons...........
Section 7.04 Other Remedies of Trustee......................................
Section 7.05 Waiver of Past Events of Default; Termination..................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee and the Bond Administrator...................
Section 8.02 Certain Matters Affecting the Trustee and the Bond
Administrator................................................
Section 8.03 Trustee and Bond Administrator Not Liable for Certificates or
Mortgage Loans...............................................
Section 8.04 Trustee and Bond Administrator May Own Certificates............
Section 8.05 Payment of Trustee's and Bond Administrator's Fees and
Expenses; Indemnification....................................
Section 8.06 Eligibility Requirements for Trustee and Bond Administrator....
Section 8.07 Resignation and Removal of the Trustee or Bond Administrator...
Section 8.08 Successor Trustee or Bond Administrator........................
Section 8.09 Merger or Consolidation of Trustee or Bond Administrator.......
Section 8.10 Appointment of Co-Trustee or Separate Trustee..................
Section 8.11 Companion Paying Agent.........................................
Section 8.12 Companion Register.............................................
ARTICLE IX
TERMINATION
Section 9.01 Termination....................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Counterparts...................................................
<PAGE>
Section 10.02 Limitation on Rights of Certificateholders.....................
Section 10.03 Governing Law..................................................
Section 10.04 Notices........................................................
Section 10.05 Severability of Provisions.....................................
Section 10.06 Notice to the Depositor and Each Rating Agency.................
Section 10.07 Amendment......................................................
Section 10.08 Confirmation of Intent.........................................
Section 10.09 No Intended Third-Party Beneficiaries..........................
Section 10.10 No Recourse....................................................
Section 10.11 Entire Agreement...............................................
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class X Certificate
Exhibit A-4 Form of Class B Certificate
Exhibit A-5 Form of Class C Certificate
Exhibit A-6 Form of Class D Certificate
Exhibit A-7 Form of Class E Certificate
Exhibit A-8 Form of Class F Certificate
Exhibit A-9 Form of Class G Certificate
Exhibit A-10 Form of Class H Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class K Certificate
Exhibit A-13 Form of Class L Certificate
Exhibit A-14 Form of Class M Certificate
Exhibit A-15 Form of Class N Certificate
Exhibit A-16 Form of Class O Certificate
Exhibit A-17 Form of Class Q-1 Certificate
Exhibit A-18 Form of Class Q-2 Certificate
Exhibit A-19 Form of Class R Certificate
Exhibit A-20 Form of Class LR Certificate
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Servicing Fee Rate Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F [RESERVED]
Exhibit G Securities Legend
Exhibit H German American Capital Corporation Purchase Agreement
Exhibit I Morgan Guaranty Trust Company of New York
Purchase Agreement
Exhibit J LaSalle Bank National Association Purchase Agreement
Exhibit K Form of Regulation S Transfer Certificate
Exhibit L Form of Transfer Certificate for Exchange or Transfer
from Rule 144A Global Certificate to Regulation S
Global Certificate during the Restricted Period
Exhibit M Form of Transfer Certificate for Exchange or Transfer
from Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit N Form of Transfer Certificate for Exchange or Transfer
from Regulation S Global Certificate to Rule 144A
Global Certificate
Exhibit O-1 Form of Comparative Financial Status Report
Exhibit O-2 Form of Delinquent Loan Status Report
Exhibit O-3 Form of Historical Loan Modification Report
Exhibit O-4 Form of Historical Liquidation Report
Exhibit O-5 Form of REO Status Report
Exhibit O-6 Form of Watch List
Exhibit O-7 Form of Operating Statement Analysis Report
Exhibit O-8 Form of NOI Adjustment Analysis Worksheet
Exhibit O-9 CMSA Loan Set-Up Data Record Layout
Exhibit O-10 CMSA Loan Periodic Update Data Record Layout
Exhibit O-11 CMSA Property File Data File
Exhibit O-12 CMSA Financial File Data Record Layout
Exhibit O-13 Paid After Determination Date Report
Schedule I Companion Loan Schedule
Schedule II Companion Holders
<PAGE>
Pooling and Servicing Agreement, dated as of September 1, 2000,
among Deutsche Mortgage & Asset Receiving Corporation, as Depositor, Orix Real
Estate Capital Markets, LLC, as Servicer, ORIX Real Estate Capital Markets, LLC,
as initial Special Servicer, Wells Fargo Bank Minnesota, N.A., as Trustee,
LaSalle Bank National Association, as Bond Administrator, Paying Agent and
Companion Paying Agent, German American Capital Corporation, as holder of the
Alliance Companion Loan and the Crystal Park Companion Loan, and L-O Broadway
Investments, Inc., as holder of the Crowne Plaza Companion Loan.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof)
The Depositor intends that the Fairgrounds Square Loan and the
Towne Square Apartments Loan (the "Loan REMIC Loans") be held as assets of
single-loan REMICs (each, a "Loan REMIC"), that the related Loan REMIC Regular
Interests be held as assets of the Lower-Tier REMIC, and that the Loan REMIC
Residual Interests be held by the Trustee on behalf of the Holders of the Class
LR Certificates. The Depositor intends to sell pass-through certificates to be
issued hereunder in multiple Classes which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund consisting primarily of
the Mortgage Loans. As provided herein, the Bond Administrator will elect that
the Trust Fund, exclusive of the Lock-Box Accounts, Cash Collateral Accounts,
Reserve Accounts, Default Interest, the Default Interest Distribution Account,
Excess Interest, the Excess Interest Distribution Account, the Loan REMIC
Residual Interests and the Wilton Prepayment Premium Obligation (such
nonexcluded portion of the Trust Fund, the "Trust REMICs"), be treated for
federal income tax purposes as four separate real estate mortgage investment
conduits (each, a "REMIC" or, in the alternative, the "Fairfield Square Loan
REMIC," the "Towne Square Apartments Loan REMIC," the "Lower-Tier REMIC" and the
"Upper-Tier REMIC," respectively, within the meaning of Code Section 860D). The
Class A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates constitute classes of "regular interests" in the Upper-Tier REMIC
and the Class R Certificates constitute the sole Class of "residual interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions. Each Loan REMIC
will hold its respective Loan REMIC Loan (exclusive of the Default Interest
thereon), the proceeds therefrom, the portion of the Collection Account related
thereto, and any related REO Property. Each Loan REMIC will issue one
uncertificated Class of regular interests (each, a "Loan REMIC Regular
Interest") to the Lower-Tier REMIC and one Class of residual interest (each, a
"Loan REMIC Residual Interest"), which will be represented by the Class LR
Certificates. The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of
Excess Interest, Default Interest and the Loan REMIC Loans), the Loan REMIC
Regular Interests, the proceeds therefrom, the Collection Account (exclusive of
any portion thereof identified as constituting Excess Interest or Default
Interest or held on behalf of any Companion Holder under the provisions of this
Agreement), the Lower-Tier Distribution Account, the Interest Reserve Account,
the Excess Liquidation Proceeds Account (exclusive of any portion thereof held
on behalf of any Companion Holder under the provisions of this Agreement) and
any related REO Property, and will issue (i) the uncertificated Class A-1L,
Class A-2L, Class B-L, Class C-L, Class D-L, Class E-L, Class F-L, Class G-L,
Class H-L, Class J-L, Class K-L, Class L-L, Class M-L, Class N-L and Class O-L
Interests (the "Lower-Tier Regular Interests"), as classes of regular interests
in the Lower-Tier REMIC, and (ii) the Class LR Certificates, which will
represent the sole class of residual interests in the Lower-Tier REMIC and in
each of the Loan REMIC Residual Interests, within the meaning of the REMIC
Provisions. The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and
the Upper-Tier Distribution Account and will issue 16 Classes of regular
interests in the Upper-Tier REMIC. The Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O Certificates (the "Regular Certificates") are
designated as classes of regular interests, and the Class R Certificates are
designated as the sole class of residual interests, in the Upper-Tier REMIC.
The parties intend that the portions of the Trust Fund
representing the Loan REMIC Residual Interests, the Default Interest, the
Default Interest Distribution Account, the Excess Interest, the Excess Interest
Distribution Account and the Wilton Prepayment Premium Obligation and the
proceeds thereof will be treated as a grantor trust under Subpart E of Part 1 of
Subchapter J of the Code, and: (a) that the Class LR Certificates represent pro
rata undivided beneficial interests in the portion of the Trust Fund consisting
of the Loan REMIC Residual Interests, (b) that the Class Q-1 Certificates
represent pro rata undivided beneficial interests in the portion of the Trust
Fund consisting of Default Interest collected on the Mortgage Loans, subject to
the obligations to pay the Advance Interest Amount, and in the Default Interest
Distribution Account; (c) that the Class Q-2 Certificates represent pro rata
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest collected on the Mortgage Loans and in the Excess Interest
Distribution Account; and (d) that the Class X Certificates, on the one hand,
and the Class or Classes of Principal Balance Certificates entitled to a
distribution of principal in respect of a repurchase by GACC of the Wilton
Office Plaza Loan (in the circumstances described in Section 2.03(d) of this
Agreement), on the other hand, represent pro rata undivided beneficial interests
in the Wilton Prepayment Premium Obligation. The Reserve Accounts and Lock-Box
Accounts will be beneficially owned by the Borrowers on the Mortgage Loans to
which they relate, will not constitute a portion of the Trust Fund, but
disbursements therefrom will be under the control of the Servicer.
The following table sets forth the designation and aggregate
initial Certificate Balance (or, with respect to the Class X Certificates,
Notional Balance) for each Class of Certificates comprising interests in the
Upper-Tier REMIC.
Certificate Balance or
Class Notional Balance
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Class A-1 $148,498,000
Class A-2 $542,915,000
Class X (1) $897,940,215
Class B $ 38,162,000
Class C $ 39,284,000
Class D $ 13,469,000
Class E $ 25,815,000
Class F $ 11,224,000
Class G $ 26,938,000
Class H $ 6,734,000
Class J $ 6,734,000
Class K $ 10,101,000
Class L $ 7,856,000
Class M $ 6,734,000
Class N $ 4,489,000
Class O $ 8,987,215
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(1) The initial Notional Balance of Class X Certificates is equal to the sum of
the initial Certificate Balances of the Principal Balance Certificates which
amount corresponds to the aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-off Date.
The initial Certificate Balance of each of the Class Q-1, Class
Q-2, Class R and Class LR Certificates is zero. Additionally, the Class Q-1,
Class Q-2, Class R and Class LR Certificates do not have a Notional Balance. The
Certificate Balance of any Class of Certificates outstanding at any time
represents the maximum amount which holders thereof are entitled to receive as
distributions allocable to principal from the cash flow on the Mortgage Loans
and the other assets in the Trust Fund; provided, however, that in the event
that amounts previously allocated as Realized Losses to a Class of Certificates
in reduction of the Certificate Balance thereof are subsequently recovered
(including without limitation after the reduction of the Certificate Balance of
such Class to zero), such Class may receive distributions in respect of such
recoveries in accordance with the priorities set forth in Section 4.01.
The initial Loan REMIC Balances, initial Lower-Tier Balances and
Pass-Through Rates for the Loan REMIC Regular Interests and the Lower-Tier
Regular Interests are set forth in the definitions of such terms.
As of the Cut-off Date, the Mortgage Loans have an aggregate
Stated Principal Balance equal to approximately $897,940,215.
There exist three mortgage loans, the first in the original
principal amount of $28,000,000 (the "Crowne Plaza Companion Loan"), the second
in the original principal amount of $13,621,183 (the "Crystal Park Companion
Loan"), and the third in the original principal amount of $15,608,443 (the
"Alliance Companion Loan," and together with the Crowne Plaza Companion Loan and
the Crystal Park Companion Loan, the "Companion Loans") that are not part of the
Trust Fund and that are each secured by the same Mortgage or Mortgages as a
Mortgage Loan that is part of the Trust Fund. The Mortgage Loans identified
herein as the "Crown Plaza Mortgage Loan," the "Crystal Park Mortgage Loan" and
the "Alliance Mortgage Loan," respectively, are assets of the Trust Fund. As and
to the extent provided herein, the Crowne Plaza Companion Loan, the Crystal Park
Companion Loan and the Alliance Companion Loan will all be serviced and
administered in accordance with this Agreement. Amounts attributable to the
Companion Loans will not be assets of the Trust Fund, and will be beneficially
owned by the related Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Bond
Administrator agree as follows:
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.
"Act": The Securities Act of 1933, as it may be amended from time
to time.
"Actual/360 Mortgage Loans": The Mortgage Loans or Companion
Loans indicated as such in the Mortgage Loan Schedule or Companion Loan
Schedule, as applicable.
"Additional Trust Fund Expense": Any expense incurred with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Holders of Regular Certificates receiving
less than the full amount of principal and/or the Interest Accrual Amount to
which they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of P&I Advances and Property Advances for which the Servicer,
the Special Servicer (as to Property Advances only) or the Trustee, as
applicable, has not been reimbursed and on Servicing Fees, Trustee Fees or
Special Servicing Compensation for which the Servicer, the Trustee, the Bond
Administrator or the Special Servicer, as applicable, has not been timely paid
or reimbursed for the number of days from the date on which such Advance was
made or such Servicing Fees, Trustee Fees or Special Servicing Compensation were
due to the date of payment or reimbursement of the related Advance or other such
amount, less any amount of interest previously paid on such Advance or Servicing
Fees, Trustee Fees or Special Servicing Compensation; provided, that if, during
any Collection Period in which an Advance was made, the related Borrower makes
payment of an amount in respect of which such Advance was made with interest at
the Default Rate, the Advance Interest Amount payable to the Servicer, the
Special Servicer or the Trustee shall be paid first from the amount of Default
Interest on the related Mortgage Loan or Loan Pair by such Borrower received
during such Collection Period, second, from late payment fees on the related
Mortgage Loan or Loan Pair by the related Borrower received during such
Collection Period, and third, upon determining in good faith that such Advance
Interest Amount is not recoverable from the amounts described in first or
second, from other amounts on deposit in the Collection Account (but with
respect to a Loan Pair, subject to Section 1.04).
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, on or before the related Record Date) compounded monthly as of
each Servicer Remittance Date. Interest at the Advance Rate will accrue from
(and including) the date on which the related Advance is made or the related
expense incurred to (but excluding) the date on which such amounts are recovered
out of amounts received on the Mortgage Loan as to which such Advances were made
or servicing expenses incurred or the first Servicer Remittance Date after a
determination of non-recoverability, as the case may be, is made, provided that
such interest at the Advance Rate will continue to accrue to the extent funds
are not available in the Collection Account for such reimbursement of such
Advance.
"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. The Bond Administrator
may obtain and together with the Trustee, may rely on an Officers' Certificate
of the Servicer, the Special Servicer or the Depositor to determine whether any
Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the
Depository.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Alliance Companion Loan": As defined in the Preliminary
Statement.
"Alliance Loan Pair": Collectively, the Alliance Companion Loan
and the Alliance Mortgage Loan.
"Alliance Mezzanine Loan": The loan made to Alliance TP, L.L.C.,
the parent of the Borrower under the Alliance Loan Pair.
"Alliance Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule by loan number 2.
"Allocated Loan Amount": With respect to each Mortgaged Property,
the portion of the principal amount of the related Mortgage Loan allocated to
such Mortgaged Property in the applicable Mortgage, Loan Agreement or the
Mortgage Loan Schedule or Companion Loan Schedule, as applicable.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.14 hereof and an annual report of
an Independent accountant required pursuant to Section 3.15 hereof
"Anticipated Repayment Date": With respect to any Mortgage Loan
or Companion Loan that is indicated on the Mortgage Loan Schedule or Companion
Loan Schedule, as applicable, as having a Revised Rate, the date upon which such
Mortgage Loan or Companion Loan commences accruing interest at such Revised
Rate.
"Anticipated Termination Date": Any Distribution Date on which it
is anticipated that the Trust Fund will be terminated pursuant to Section
9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Appraisal Reduction Amount": For any Distribution Date and for
any Mortgage Loan or Loan Pair an amount equal to the excess, if any, of (a) the
Stated Principal Balance of such Mortgage Loan or Loan Pair over (b) the excess
of (i) 90% of the sum of the appraised values (net of any prior mortgage liens
but including all escrows and reserves (other than escrows and reserves for
taxes and insurance)) of the related Mortgaged Properties as determined by
Updated Appraisals obtained by the Special Servicer (the costs of which shall be
paid by the Servicer or the Special Servicer, as applicable, as a Property
Advance) of the Mortgaged Properties securing such Mortgage Loan or Loan Pair
(or, in the case of Mortgage Loans or Loan Pairs having a principal balance
under $2,000,000, 90% of the sum of the Small Loan Appraisal Estimates of the
related Mortgaged Properties (as described below)) over (ii) the sum of (A) to
the extent not previously advanced by the Servicer or the Trustee, all unpaid
interest on such Mortgage Loan or Loan Pair (exclusive of Excess Interest and/or
Default Interest), (B) all unreimbursed Property Advances and the principal
portion of all unreimbursed P&I Advances, and all unpaid interest on Advances at
the Advance Rate, in respect of such Mortgage Loan or Loan Pair, (C) any other
unpaid Additional Trust Fund Expenses in respect of such Mortgage Loan or Loan
Pair, and (D) all currently due and unpaid real estate taxes, ground rents and
assessments and insurance premiums (net of any escrows and reserves therefor)
and all other amounts due and unpaid with respect to such Mortgage Loan or Loan
Pair (which taxes, premiums and other amounts have not been the subject of an
Advance by the Servicer, the Special Servicer or the Trustee, as applicable). If
no Updated Appraisal has been obtained within the last 12 months prior to the
first Distribution Date on or after an Appraisal Reduction Event has occurred,
the Special Servicer shall estimate the value of the related Mortgaged
Properties (the "Servicer's Appraisal Estimate") and such estimate shall be used
for purposes of determining the Appraisal Reduction Amount for such Distribution
Date. Notwithstanding the foregoing, (A) with respect to Mortgage Loans or Loan
Pairs having a principal balance of $2,000,000 or higher, within 60 days (or in
the case of an Appraisal Reduction Event occurring by reason of clause (ii) of
the definition thereof, 30 days) after the Special Servicer receives notice or
is otherwise aware of the Appraisal Reduction Event, the Special Servicer shall
obtain an Updated Appraisal or (B) with respect to Mortgage Loans or Loan Pairs
having a principal balance of less than $2,000,000, the Special Servicer, at its
option, shall (i) provide a Small Loan Appraisal Estimate within the same time
period as an appraisal would otherwise be required and such Small Loan Appraisal
Estimate shall be used in lieu of an independent MAI appraisal to calculate the
Appraisal Reduction Amount for such Mortgage Loans or Loan Pairs; or (ii) with
the consent of the Directing Certificateholder or if a Loan Pair is involved,
the related Companion Holder, obtain an Updated Appraisal. On the first
Distribution Date occurring on or after the delivery of such independent MAI
appraisal, the Servicer shall adjust the Appraisal Reduction Amount to take into
account such appraisal (regardless of whether the Updated Appraisal is higher or
lower than the Small Loan Appraisal Estimate). Each Appraisal Reduction Amount
shall also be adjusted to take into account any subsequent Small Loan Appraisal
Estimate or Updated Appraisal, as applicable, and any annual letter updates, as
of the date of each such subsequent Small Loan Appraisal Estimate, Updated
Appraisal or letter update, as applicable. Each Appraisal Reduction Amount in
respect of any Loan Pair shall be allocable, first, to the Companion Loan in
such Loan Pair, and, then, to the related Mortgage Loan in such Loan Pair.
"Appraisal Reduction Event": With respect to any Mortgage Loan or
Loan Pair, the first Distribution Date following the earliest of (i) the date on
which any Mortgage Loan or the related Companion Loan becomes a Modified
Mortgage Loan, (ii) the 90th day following the occurrence of any uncured
delinquency in Monthly Payments with respect to any Mortgage Loan or the related
Companion Loan, (iii) receipt of notice that the related Borrower has filed a
bankruptcy petition or the date on which a receiver is appointed and continues
in such capacity in respect of a Mortgaged Property securing any Mortgage Loan
or Loan Pair or 60 days after the Borrower becomes the subject of involuntary
bankruptcy proceedings and such proceedings are not dismissed, (iv) the date on
which the Mortgaged Property securing any Mortgage Loan or Loan Pair becomes an
REO Property and (v) 60 days after the third anniversary of any extension of a
Mortgage Loan. With respect to a Loan Pair, the occurrence of any of the
foregoing events with respect to either the Mortgage Loan or the related
Companion Loan in such Loan Pair shall constitute an Appraisal Reduction Event
with respect to such Loan Pair. The Special Servicer shall notify the Servicer
promptly upon the occurrence of any of the foregoing events with respect to any
Specially Serviced Loan.
"Approval Report": As defined in Section 3.27.
"Asset Status Report": As defined in Section 3.26(f).
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Assumed Maturity Date": With respect to (i) any Mortgage Loan
that is not a Balloon Loan, the maturity date of such Mortgage Loan; and (ii)
any Balloon Loan, the date on which such Mortgage Loan would be deemed to mature
in accordance with its original amortization schedule absent its Balloon
Payment.
"Assumed Scheduled Payment": With respect to any Mortgage Loan
that is delinquent in respect of its Balloon Payment (including any REO Loan as
to which the Balloon Payment would have been past due), an amount equal to the
sum of (a) the principal portion of the Monthly Payment that would have been due
on such Mortgage Loan on the related Due Date (or portion thereof not received),
based on the constant Monthly Payment that would have been due on such Mortgage
Loan on the related Due Date based on the constant payment required by the
related Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Net Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Servicer or Special
Servicer in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Bond Administrator pursuant to Section 3.20.
"Available Companion Distribution Amount": With respect to any
Companion Loan and any Distribution Date, an amount equal to (a) the sum of the
aggregate amount on deposit in the Collection Account attributable to such
Companion Loan (as identified on the related Companion Ledger) and the related
Companion Distribution Account, as of the close of business on the related
Determination Date, net of (b) the aggregate portion of the amount described in
clause (a) hereof that represents one or more of the following: (i) any amounts
payable or reimbursable to any Person from amounts deposited in the Collection
Account attributable to such Companion Loan (as identified on the related
Companion Ledger) pursuant to Section 3.06(e), and (ii) any amounts deposited in
the Collection Account that are attributable to such Companion Loan (as
identified on the related Companion Ledger) or the related Companion
Distribution Account, as the case may be, in error. Notwithstanding the
investment of funds held in the Collection Account attributable to a Companion
Loan (as identified on the related Companion Ledger) pursuant to Section 3.07,
for purposes of calculating the Available Companion Distribution Amount, the
amounts so invested shall be deemed to remain on deposit in such account.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds,
if any, transferred from an REO Account pursuant to Section 3.17(b) but
excluding any Excess Liquidation Proceeds) on or in respect of the Mortgage
Loans, received by the Servicer in the Collection Period relating to such
Distribution Date, (ii) all other amounts received by the Servicer in such
Collection Period and required to be placed in the Collection Account by the
Servicer pursuant to Section 3.05 allocable to such Mortgage Loans, and all P&I
Advances made by the Servicer or the Trustee in respect of such Distribution
Date, (iii) any late payments of Monthly Payments on or in respect of Mortgage
Loans received after the end of the Collection Period relating to such
Distribution Date but prior to the related Servicer Remittance Date, (iv) any
Servicer Prepayment Interest Shortfalls remitted by the Servicer to the
Collection Account and (v) with respect to the Distribution Date in March of
each calendar year the Withheld Amounts deposited in the Interest Reserve
Account by the Bond Administrator in accordance with Section 3.05(c), but
excluding the following:
(a) amounts permitted to be used to reimburse the Servicer, the
Special Servicer or the Trustee, as applicable, for
previously unreimbursed Advances and interest thereon as
described in Section 3.06(d)(ii) and 3.06(d)(iii);
(b) those portions of each payment of interest which represent
the applicable Servicing Fee and Trustee Fee and an amount
representing any applicable Special Servicing Compensation,
including interest thereon at the Advance Rate as provided
in this Agreement;
(c) all amounts in the nature of late payment fees (to the
extent not applied to the reimbursement of the Advance
Interest Amount and/or Additional Trust Fund Expenses as
provided in Section 3.06 hereof), loan modification fees,
extension fees, loan service transaction fees, demand fees,
beneficiary statement charges, Assumption Fees and similar
fees, which the Servicer or the Special Servicer is entitled
to retain as Servicing Compensation or Special Servicing
Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments due
after the related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance
Proceeds with respect to a Mortgage Loan which represents
any unpaid Servicing Fee, Trustee Fee, the Bond
Administrator Fee and Special Servicing Compensation,
including interest thereon at the Advance Rate as provided
in this Agreement, to which the Servicer, any subservicer,
Trustee, the Bond Administrator and/or the Special Servicer
are entitled;
(f) all amounts representing certain expenses reimbursable or
payable to the Servicer, the Special Servicer, the Bond
Administrator or the Trustee and other amounts permitted to
be retained by the Servicer or withdrawn by the Servicer
from the Collection Account to the extent expressly set
forth in this Agreement (including, without limitation, as
provided in Section 3.06 and including any indemnities
provided for herein), including interest thereon as
expressly provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Distribution Account, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account,
the Default Interest Distribution Account, the Excess
Interest Distribution Account, any REO Account or the Excess
Liquidation Proceeds Account or, to the extent payable to
the Bond Administrator or the Servicer under the terms of
the related Mortgage Loan, any Cash Collateral Account, any
Lock-Box Account or any Reserve Account or, in each case, in
Permitted Investments in which such funds may be invested;
(h) all amounts received with respect to each Mortgage Loan
previously purchased or repurchased from the Trust Fund
pursuant to Sections 2.03(d), 2.03(e), 3.18 or 9.01 during
the related Collection Period and subsequent to the date as
of which such Mortgage Loan was purchased or repurchased;
(i) the amount reasonably determined by the Bond Administrator
to be necessary to pay any applicable federal, state or
local taxes imposed on the Upper-Tier REMIC, the Lower-Tier
REMIC or either Loan REMIC under the circumstances and to
the extent described in Section 4.05;
(j) Prepayment Premiums;
(k) Excess Interest;
(l) Net Default Interest; and
(m) with respect to the Distribution Date occurring in (A)
January of each calendar year that is not a leap year and
(B) February of each calendar year, the Withheld Amounts
deposited in the Interest Reserve Account by the Bond
Administrator in accordance with Section 3.05(c).
"Balloon Loan": Any Mortgage Loan that requires a payment of
principal on the maturity date in excess of its constant Monthly Payment.
"Balloon Payment": With respect to each Mortgage Loan, the
scheduled payment of principal due on the Maturity Date (less principal included
in the applicable amortization schedule or scheduled Monthly Payment).
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee, the Bond Administrator and the
Servicer shall have the right to require, as a condition to acknowledging the
status of any Person as a Beneficial Owner under this Agreement, that such
Person provide evidence at its expense of its status as a Beneficial Owner
hereunder.
"Bond Administrator": LaSalle Bank National Association, and its
successor in interest.
"Bond Administrator Fee": The portion of the Trustee Fee payable
to the Bond Administrator pursuant to the terms hereof calculated at the "Bond
Administrator Fee Rate" of 0.0019% per annum.
"Borrower": With respect to any Mortgage Loan, any obligor or
obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any
day on which banking institutions in The City of New York, New York, the City of
Chicago, Illinois, the State of Texas, the State of Maryland, the Commonwealth
of Massachusetts and the State of Minnesota are authorized or obligated by law,
executive order or governmental decree to be closed.
"Calculated Payments": As defined in Section 2.03(d).
"Cash Collateral Account": With respect to any Mortgage Loan or
Loan Pair 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 the Lock-Box Account monies are swept on a
regular basis for the benefit of the Trustee as successor to the Mortgage Loan
Sellers (or in the case of a Loan Pair, for the benefit of the Trustee and the
related Companion Holder). 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 Mortgage Loan and Section 3.07, which Person shall be
taxed on all reinvestment income or gain thereon in accordance with the terms of
the related Mortgage Loan. The Servicer shall be permitted to make withdrawals
therefrom for deposit into the Collection Account. To the extent not
inconsistent with the terms of the related Mortgage, each such Cash Collateral
Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage
Loan or Loan Pair, the cash collateral account agreement, if any, between the
related Originator and the related Borrower, pursuant to which the related Cash
Collateral Account, if any, may have been established.
"Cash Deposit": An amount equal to all cash payments of principal
and interest received by the Mortgage Loan Sellers in respect of their related
Mortgage Loans prior to or on the Closing Date that are due after the Cut-off
Date, to the extent transferred to the Trust Fund pursuant to Section 2.01.
"Certificate": Any Class A-1, Class A-2, Class X, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class Q-1, Class Q-2, Class R or Class LR Certificate
issued, authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Class X, Class Q-1, Class Q-2, Class R and Class LR
Certificates) (a) on or prior to the first Distribution Date, an amount equal to
the aggregate initial Certificate Balance of such Class, as specified in the
Preliminary Statement hereto, (b) as of any date of determination after the
first Distribution Date, the Certificate Balance of such Class of Certificates
on the Distribution Date immediately prior to such date of determination after
distributions and Realized Losses allocable to principal have been made thereon
on such prior Distribution Date
"Certificate Custodian": Initially, the Bond Administrator;
thereafter, any other Certificate Custodian acceptable to the Depository and
selected by the Bond Administrator.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the following:
(a) except as provided in clauses (b) and (d), for the purpose
of giving any consent or taking any action pursuant to this
Agreement, any Certificate beneficially owned by the
Depositor, the Servicer, the Special Servicer, the Trustee,
the Bond Administrator, a Manager or a Borrower or any
Person known to a Responsible Officer of the Certificate
Registrar to be an Affiliate of any thereof shall be deemed
not to be outstanding and the Voting Rights to which it is
entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary
to effect any such consent or take any such action has been
obtained;
(b) for purposes of obtaining the consent of Certificateholders
to an amendment of this Agreement, any Certificates
beneficially owned by the Servicer or the Special Servicer
or an Affiliate thereof shall be deemed to be outstanding,
unless such amendment relates to compensation of the
Servicer or the Special Servicer or benefits the Servicer or
the Special Servicer (in its capacity as such) or any
Affiliate thereof (other than solely in its capacity as
Certificateholder) in any material respect, in which case
such Certificates shall be deemed not to be outstanding;
(c) except as provided in clause (d) below, for purposes of
obtaining the consent of Certificateholders to any action
proposed to be taken by the Special Servicer with respect to
a Specially Serviced Loan, any Certificates beneficially
owned by the Special Servicer or an Affiliate thereof shall
be deemed not to be outstanding;
(d) for the purpose of exercising its rights as a member of the
Controlling Class or as a Directing Certificateholder (if
applicable), any Certificate beneficially owned by the
Special Servicer or an Affiliate thereof will be deemed
outstanding; and
(e) for purposes of providing or distributing any reports,
statements or other information required or permitted to be
provided to a Certificateholder hereunder, a
Certificateholder shall include any Beneficial Owner, or any
Person identified by a Beneficial Owner as a prospective
transferee of a Certificate beneficially owned by such
Beneficial Owner, but only if the Bond Administrator or
another party hereto furnishing such report, statement or
information has been provided with the name of the
Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes
of the foregoing, the Depositor, the Servicer, the Special
Servicer, the Trustee, the Bond Administrator, the Paying
Agent or other such Person may rely, without limitation, on
a Depository Participant listing from the Depository or
statements furnished by a Person that on their face appear
to be statements from a Depository Participant to such
Person indicating that such Person beneficially owns
Certificates.
"Class": With respect to the Certificates or Lower-Tier Regular
Interests, all of the Certificates or Lower-Tier Regular Interests bearing the
same alphabetical and numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to 7.206%.
"Class A-1L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to the
lesser of 7.416% per annum and the Weighted Average Net Mortgage Pass-Through
Rate.
"Class A-2L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the lesser
of 7.494% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class B-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the lesser
of 7.706% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class C-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the lesser
of 7.804% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class D-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the lesser
of 8.132% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class E-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"Class F-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class G Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class G-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Shortfall": On any Distribution Date for any
Class of Certificates, the amount of interest required to be distributed to the
Holders of such Class pursuant to Section 4.01(b) on such Distribution Date
minus the amount of interest actually distributed to such Holders pursuant to
such Section, if any.
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class J-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class K-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class L-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-20 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class M-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class N Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class N-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class O Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser
of 6.85% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class O-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Q-1 Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-17 hereto. The
Class Q-1 Certificates have no Pass-Through Rate, Certificate Balance or
Notional Balance.
"Class Q-2 Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-18 hereto. The
Class Q-2 Certificates have no Pass-Through Rate, Certificate Balance or
Notional Balance.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-19 hereto. The
Class R Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or the Authenticating Agent on behalf of
the Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class X Component": Any one of the 15 component interests
represented by the Class X Certificates, each of which relates to a Class of
Principal Balance Certificates, as defined below, and represents a right to a
specified portion, within the meaning of Treasury Regulation 1.860G-1(a)(2), of
interest paid on its related Class of Lower-Tier Regular Interests. Each Class X
Component bears interest at a rate per annum (the "Component Rate") equal to the
excess, if any, of the Weighted Average Net Mortgage Pass-Through Rate over the
Pass-Through Rate applicable to the related Class of Principal Balance
Certificates, and has a Notional Amount equal to the Lower-Tier Balance of its
related Lower-Tier Regular Interest. The Class X Components, related Lower-Tier
Regular Interests, and related Class of Principal Balance Certificates are as
follows:
<TABLE>
<CAPTION>
Lower-Tier
Class X Component Principal Balance Certificates Regular Interests
----------------- ------------------------------ -----------------
<S> <C> <C>
Class X-A1 Component Class A-1 Certificates Class A-1L Interest
Class X-A2 Component Class A-2 Certificates Class A-2L Interest
Class X-B Component Class B Certificates Class B-L Interest
Class X-C Component Class C Certificates Class C-L Interest
Class X-D Component Class D Certificates Class D-L Interest
Class X-E Component Class E Certificates Class E-L Interest
Class X-F Component Class F Certificates Class F-L Interest
Class X-G Component Class G Certificates Class G-L Interest
Class X-H Component Class H Certificates Class H-L Interest
Class X-J Component Class J Certificates Class J-L Interest
Class X-K Component Class K Certificates Class K-L Interest
Class X-L Component Class L Certificates Class L-L Interest
Class X-M Component Class M Certificates Class M-L Interest
Class X-N Component Class N Certificates Class N-L Interest
Class X-O Component Class O Certificates Class O-L Interest
</TABLE>
"Class X Pass-Through Rate": A per annum rate equal to the
weighted average Component Rate, weighted on the basis of the Notional Amount of
the related Class X Component.
"Clearstream": Citibank, N.A., as depositary for Clearstream
Banking, societe anonyme, or its successor in such capacity.
"Closing Date": September 20, 2000.
"CMSA Financial File": A CMSA Report substantially in the form
attached as Exhibit O-12.
"CMSA Property File": A CMSA Report substantially in the form
attached as Exhibit O-11.
"CMSA Reporting Package": 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 Bond Administrator, and containing such information
regarding the Mortgage Loans as will permit the Bond Administrator to calculate
the amounts to be distributed pursuant to Section 4.01 and to furnish statements
to Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Bond Administrator may from time to time agree.
"CMSA Reports": Reports substantially in the forms of the CMSA
standard reporting package inclusive of the CMSA Loan Setup, the CMSA Loan
Periodic Update File, the CMSA Property File and the CMSA Financial File,
attached as Exhibits O-9, O-10, O-11 and O-12, respectively, as the same may be
modified from time to time, as may be reasonably required to implement such
modified forms.
"Co-Lender Agreement": With respect to each Loan Pair and the
related Companion Note, the Agreement Among Noteholders between the Trustee and
the holder of the related Companion Loan (or in the case of the Crowne Plaza
Loan Pair, the Amended and Restated Agreement Among Noteholders), regarding the
administration of such Loan Pair and the allocation of all amounts received by
the holders of the notes comprising any portion thereof.
"Code": The Internal Revenue Code of 1986, as amended from time
to time, any successor statute thereto, and any temporary or final regulations
of the United States Department of the Treasury promulgated pursuant thereto.
"Collection Account": The trust account or accounts created and
maintained by the Servicer pursuant to Section 3.05(a), which shall be entitled
"[Name of Servicer], in trust for Wells Fargo Bank Minnesota, N.A., as Trustee,
in trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM
2000-C1 Commercial Mortgage Pass-Through Certificates, Collection Account" and
which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each
Mortgage Loan or Loan Pair, the period beginning on the day after the last day
of the preceding Collection Period (or, in the case of the Distribution Date
occurring in October 2000, on the day after the Cut-off Date) and ending at the
close of business on the Determination Date; provided, that with respect to the
Monthly Payments on the Extended Due Date Mortgage Loans, the Collection Period
will be deemed to end on those Due Dates inclusive of any grace periods, as
applicable.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to each Companion
Loan, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.06(c) and held on behalf of the related Companion Holder,
which shall be entitled "LaSalle Bank National Association, as Companion Paying
Agent for the Companion Holder of the related Companion Loan." The Companion
Distribution Accounts shall not be assets of the Trust Fund, but instead each
Companion Distribution Account shall be held by the Companion Paying Agent on
behalf of the related Companion Holder. Any such account shall be an Eligible
Account.
"Companion Holder": With respect to each Companion Loan, the
owner thereof; the owners as of the Cut-off Date are listed on Schedule II
attached hereto.
"Companion Ledger": With respect to each Companion Loan, the
ledger entries made by the Servicer with respect to amounts on deposit in the
Collection Account attributable to such Companion Loan, which amounts are
maintained pursuant to Section 3.05(a) and held on behalf of the applicable
Companion Holder.
"Companion Loan": Any one of the Companion Loans. Such term shall
include any Companion Loan that has become an REO Loan or Specially Serviced
Loan or that has been defeased in whole or in part.
"Companion Loan Schedule": The meaning set forth in Section 2.02.
"Companion Loans": As defined in the Preliminary Statement.
"Companion Paying Agent": The paying agent appointed pursuant to
Section 5.04.
"Companion Register": The register maintained and the registrar
appointed pursuant to Section 8.12.
"Companion Servicing Fee": With respect to any Companion Loan and
any Distribution Date, the portion of the Servicing Fees payable at the
Servicing Fee Rate in respect of the unpaid principal balance of such Companion
Loan (calculated on the basis of the same day convention as the Servicing Fee is
calculated on the related Note for the applicable Interest Accrual Period).
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit O-1 attached hereto, setting forth,
among other things, the occupancy, revenue, underwritten net operating income or
net cash flow, as applicable, and Debt Service Coverage Ratio for each Mortgaged
Property as of the date of the latest financial information available
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 trailing 12-month period (or year-to-date until such time that
data for the trailing 12-month period is available), (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 Mortgage Loan Sellers.
"Component Rate": As defined in the definition of Class X
Component.
"Control Appraisal Event": With respect to any Loan Pair, a
"Control Appraisal Event" will exist if and for so long as:
(a) the difference between (1) the outstanding principal
balance of such Companion Loan minus (2) the sum of (x)
any Appraisal Reduction Amount allocated to such Companion
Loan and (y) losses realized with respect to any
liquidation of the related Mortgaged Property or Mortgaged
Properties is less than
(b) 25% of the outstanding principal balance of such Companion
Loan.
"Controlling Class": As of any date of determination, the Class
of Principal Balance Certificates with the latest alphabetical Class designation
that has a then-aggregate Certificate Balance at least equal to 25% of the
initial aggregate Certificate Balance of such Class of Principal Balance
Certificates as of the Closing Date. As of the Closing Date, the Controlling
Class will be the Class O Certificates. For purposes of determining the
Controlling Class, the Class A-1 and Class A-2 Certificates collectively will be
treated as one Class.
"Controlling Class Certificateholder": Each holder (or
Certificate Owner, if applicable) of a Certificate of the Controlling Class as
certified to the Bond Administrator from time to time by such holder (or
Certificate Owner).
"Corporate Trust Office": The offices of the Trustee located at
11000 Broken Land Parkway, Columbia, Maryland 21044 or the principal trust
office of any successor Trustee qualified and appointed pursuant to Section
8.08.
"Corrected Mortgage Loan": As defined under the definition of
Specially Serviced Loan.
"Cross-Collateralized Group": Any group of Mortgage Loans or Loan
Pairs that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Loan": Any Mortgage Loan that is
cross-defaulted and cross-collateralized with any other Mortgage Loan or
Companion Loan.
"Cross-over Date": means the Distribution Date on which the
Certificate Balance of each Class of Certificates other than the Class A-1 and
Class A-2 Certificates have been reduced to zero.
"Crowne Plaza Companion Loan": As defined in the Preliminary
Statement.
"Crowne Plaza Loan Pair": Collectively, the Crowne Plaza
Companion Loan and the Crowne Plaza Mortgage Loan.
"Crowne Plaza Mezzanine Loan": The loan made to Broadway Crowne
Plaza, LLC, the parent of the Borrower under the Crowne Plaza Loan Pair.
"Crowne Plaza Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule by loan number 1.
"Crystal Park Companion Loan": As defined in the Preliminary
Statement.
"Crystal Park Loan Pair": Collectively, the Crystal Park
Companion Loan and the Crystal Park Mortgage Loan.
"Crystal Park Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule by loan number 3.
"Custodial Agreement": The Custodial Agreement, if any, from time
to time in effect between the Custodian named therein and the Trustee, in the
form agreed to by the Trustee and the Custodian, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21
and, unless the Trustee is Custodian, named pursuant to any Custodial Agreement.
If a Custodian is not so appointed, then the Custodian shall be the Trustee. The
Custodian may (but need not) be the Trustee or the Servicer or any Affiliate of
the Trustee or the Servicer, but may not be the Depositor, any Mortgage Loan
Seller or any Affiliate thereof.
"Cut-off Date": September 1, 2000 (except in the case of the
Mortgage Loans identified as Loan No. 11 and Loan No. 43 on the Mortgage Loan
Schedule, September 10, 2000, and in the case of the Mortgage Loan identified as
Loan No. 87, September 11, 2000).
"DBS": Deutsche Bank Securities Inc.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan
or Loan Pair as of any date of determination and for any period, the ratio
calculated by dividing the net operating income or net cash flow, as applicable,
of the related Mortgaged Property or Mortgaged Properties, as the case may be,
for the most recently ended 12-month trailing or one-year period for which data
is available from the related Borrower (or year-to-date until such time that
data for the trailing 12-month period is available), before payment of any
scheduled payments of principal and interest on such Mortgage Loan or Loan Pair
but after funding of required reserves and "normalized" by the Servicer pursuant
to Section 3.13, by the annual debt service (or, with respect to interest only
Mortgage Loans, the future amortizing interest payments) required by such
Mortgage Loan or Loan Pair. Annual debt service (or, with respect to interest
only Mortgage Loans, the future amortizing interest payments) shall be
calculated by multiplying the Monthly Payment in effect on such date of
determination for such Mortgage Loan or Loan Pair by 12 (or such fewer number of
months for which related information is available).
"Default Interest": With respect to any Mortgage Loan or
Companion Loan, interest accrued on such Mortgage Loan or Companion 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 Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Bond Administrator pursuant to Section 3.05(e), which shall be entitled "Wells
Fargo Bank Minnesota, National Association, as Trustee, in trust for Holders of
Deutsche Mortgage & Asset Receiving Corporation, COMM 2000-C1 Commercial
Mortgage Pass-Through Certificates, Default Interest Distribution Account" and
which must be an Eligible Account. The Default Interest Distribution Account
shall not be an asset of either Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC.
"Default Rate": With respect to each Mortgage Loan and Companion
Loan, the per annum rate at which interest accrues on such Mortgage Loan or
Companion Loan following any event of default on such Mortgage Loan or Companion
Loan, including a default in the payment of a Monthly Payment or a Balloon
Payment.
"Defect": As defined in Section 2.03(e).
"Delinquency": Any failure of a Borrower to make a scheduled
Monthly Payment or Balloon Payment on a Due Date.
"Delinquent Loan Status Report": A report substantially
containing the content described in Exhibit O-2 attached hereto, setting forth,
among other things, those Mortgage Loans or Loan Pairs which, as of the close of
business on the Determination Date immediately preceding the respective
Distribution Date, were delinquent 30 days to 59 days, delinquent 60 days to 89
days, delinquent 90 days or more, current but specially serviced, or were in
foreclosure but were not REO Property.
"Denomination": As defined in Section 5.01(a).
"Depositor": Deutsche Mortgage & Asset Receiving Corporation, a
Delaware corporation, and its successors and assigns.
"Depository": The Depository Trust Company or a successor
appointed by the Certificate Registrar (which appointment shall be at the
direction of the Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time,
the Depository effects book-entry transfers and pledges of securities deposited
with the Depository.
"Determination Date": The 6th Business Day preceding each
Distribution Date.
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders (which initially shall be Allied Capital Corporation), by
Certificate Balance, as certified by the Bond Administrator from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class will be the Directing Certificateholder; provided,
further, that in order for the Bond Administrator to certify the status of the
Directing Certificateholder, the Directing Certificateholder must provide notice
and certification to the Bond Administrator as to its status as Directing
Certificateholder upon which the Bond Administrator shall use its best efforts
to verify such status. In the event that the Bond Administrator is unable to
verify the status of the Directing Certificateholder, it shall provide written
notice to the Holders of the Controlling Class as to the designation of the
Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof that are not
customarily provided to tenants in connection with the rental of space for
occupancy only within the meaning of Treasury Regulations Section
1.512(b)-1(c)(5), the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers in the ordinary course of a
trade or business, or any use of such REO Property in a trade or business
conducted by the Trust Fund, or the performance of any construction work on the
REO Property other than through an Independent Contractor; provided, however,
that the Special Servicer, on behalf of the Trust Fund (and in the case of a
Mortgaged Property securing a Loan Pair, the related Companion Holder), shall
not be considered to Directly Operate an REO Property solely because the Special
Servicer, on behalf of the Trust Fund and the related Companion Holder (if any),
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property or takes other actions consistent
with Treasury Regulations Section l.856-4(b)(5)(ii).
"Discount Rate": With respect to (i) each Mortgage Loan (other
than the Wilton Office Plaza Loan) as to which there has been a prepayment
during a Collection Period and for which a Prepayment Premium is collected, the
yield (compounded monthly) for "This Week" as reported by the Federal Reserve
Board in Federal Reserve Statistical Release H.15(519) for the constant maturity
treasury security having a maturity coterminous with the Anticipated Repayment
Date, in the case of any Mortgage Loan that is indicated on the Mortgage Loan
Schedule as having a Revised Rate, or the Maturity Date, in the case of each
other Mortgage Loan, of such Mortgage Loan as of the related Determination Date.
If there is no Discount Rate for instruments having a maturity coterminous with
the Maturity Date or Anticipated Repayment Date, as applicable, of the
applicable Mortgage Loan, then the Discount Rate will be equal to the linear
interpolation of the yields of the constant maturity treasury securities with
maturities next longer and shorter than such Maturity Date or Anticipated
Repayment Date and (ii) with respect to the Wilton Office Plaza Loan, as defined
in Section 2.03(d).
"Discount Rate Fraction": With respect to the distribution of any
Prepayment Premium received with respect to any Mortgage Loan to one or more
Classes of Certificates on any Distribution Date, a fraction (not greater than
1.0 or less than zero), (a) the numerator of which is equal to the excess of (x)
the Pass-Through Rate for such Class of Certificates over (y) the relevant
Discount Rate and (b) the denominator of which is equal to the excess of (x) the
Mortgage Rate of the related Mortgage Loan over (y) the relevant Discount Rate.
"Disqualified Non-U.S. Person": With respect to a Class R or
Class LR Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R or Class LR Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form 4224 (or applicable successor Form promulgated by the Internal Revenue
Service for the purpose of providing and certifying the information provided on
Form 4224 as of the Closing Date) or (ii) a Non-U.S. Person that has delivered
to both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R or Class
LR Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R or
Class LR Certificate will not be disregarded for federal income tax purposes.
"Disqualified Organization": Any of (a) the United States, a
State or any 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 a majority of its board of directors is not selected by any such
governmental unit), (b) a foreign government, International Organization (as
defined below) or agency or instrumentality of either of the foregoing, (c) an
organization that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the
Class R or Class LR Certificates (except certain farmers' cooperatives described
in Code Section 521), (d) rural electric and telephone cooperatives described in
Code Section 1381(a)(2), or (e) any other Person so designated by the
Certificate Registrar based upon an Opinion of Counsel to the effect that any
Transfer to such Person may cause the Upper-Tier REMIC, the Lower-Tier REMIC or
either Loan REMIC to be subject to tax or to fail to qualify as a REMIC at any
time that the Certificates are outstanding. For the purposes of this definition,
the terms "United States," "State" and "International Organization" shall have
the meanings set forth in Code Section 7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Bond Administrator,
which shall be entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 2000-C1
Commercial Mortgage Pass-Through Certificates, Distribution Account" and which
must be an Eligible Account. The Distribution Account shall consist of two
subaccounts: the Lower-Tier Distribution Account and the Upper-Tier Distribution
Account.
"Distribution Date": The 15th day of each month, or if such 15th
day is not a Business Day, the Business Day immediately following such 15th day,
commencing in October 2000.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to any Mortgage Loan or Companion Loan
and any month, the first day, the tenth day or the eleventh day of the month in
the related Collection Period as specified in the related Note for such Mortgage
Loan or such Companion Loan.
"Early Termination Notice Date": Any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
"Eligible Account": Any of (i) (A) an account or accounts
maintained with a depository institution or trust company the short term
unsecured debt obligations or commercial paper of which are rated at least A-1
by S&P and F-1 by Fitch in the case of accounts in which funds are held for 30
days or less or, in the case of accounts in which funds are held for more than
30 days, the long term unsecured debt obligations of which are rated at least
"A" by S&P and "AA-" by Fitch) or (B) as to which the Bond Administrator has
received written confirmation from each of the Rating Agencies that holding
funds in such account would not cause any Rating Agency to qualify, withdraw or
downgrade any of its then-current ratings on the Certificates or (ii) a
segregated trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity which, in the case of a state chartered depository institution or trust
company is subject to regulations substantially similar to 12 C.F.R. ss.9.10(b),
having in either case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal and state authority, or (iii)
any other account that, as evidenced by a written confirmation from each Rating
Agency would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates, which may
be an account maintained with the Trustee, the Bond Administrator or the
Servicer. Eligible Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer
that is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Report": The environmental audit report or reports
with respect to each Mortgaged Property delivered to the Mortgage Loan Sellers
in connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow
Account may be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the
Servicer pursuant to the related Mortgage, Cash Collateral Account Agreement,
Lock-Box Agreement or Loan Agreement for the account of such Borrower for
application toward the payment of taxes, insurance premiums, assessments,
environmental remediation and similar items in respect of the related Mortgaged
Property or related to the satisfaction of closing conditions for the related
Mortgage Loan or Loan Pair.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special
Servicer Event of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans and
Companion Loans indicated on the Mortgage Loan Schedule or Companion Loan
Schedule as having a Revised Rate, interest accrued on such Mortgage Loan or
Companion Loan allocable to the Excess Rate.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Bond Administrator pursuant to Section 3.05(f), which shall be entitled
"Deutsche Mortgage & Asset Receiving Corporation, Wells Fargo Bank Minnesota,
N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, COMM 2000-C1 Commercial Mortgage Pass-Through Certificates, Excess
Interest Distribution Account" and which must be an Eligible Account. The Excess
Interest Distribution Account shall not be an asset of either Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC.
"Excess Liquidation Proceeds": With respect to any Mortgage Loan
or Loan Pair, the excess of (i) Net Liquidation Proceeds of such Mortgage Loan
or Loan Pair or related REO Property, over (ii) the amount that would have been
received if a principal payment and all other amounts due in full had been made
with respect to such Mortgage Loan or Loan Pair on the Due Date immediately
following the date on which such proceeds were received. Any Excess Liquidation
Proceeds in respect of the Loan REMIC Loans will be deemed distributed in
respect of the related Loan REMIC Residual Interests and deemed deposited in the
Excess Liquidation Proceeds Account.
"Excess Liquidation Proceeds Account": The segregated account
created and maintained by the Bond Administrator pursuant to Section 3.17(e) in
trust for the Certificateholders, which shall be entitled "Wells Fargo Bank
Minnesota, N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates, Excess Liquidation Proceeds Account." The Excess Liquidation
Proceeds Account will be an asset of the Lower-Tier REMIC.
"Excess Prepayment Interest Shortfall": With respect to the
Mortgage Loans, the aggregate Prepayment Interest Shortfalls in excess of the
sum of (i) the Prepayment Interest Excess and (ii) the aggregate Master
Servicing Fee.
"Excess Rate": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule or Companion Loans indicated on the
Companion Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate for such Mortgage
Loan or the weighted average of the Mortgage Rates for the Mortgage Loan and the
Companion Loan comprising such Loan Pair, as set forth in the Mortgage Loan
Schedule or the Companion Loan Schedule, as applicable.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Liquidation Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis Report, NOI Adjustment Worksheet, Watch List, or
Annual Compliance Report to be filed with the Commission, under cover of the
related form required by the Exchange Act.
"Extended Due Date Mortgage Loans": The Mortgage Loans identified
as Loan No. 11, Loan No. 43 and Loan No. 87 on the Mortgage Loan Schedule and
any other Mortgage Loan with a grace period expiring after the Determination
Date but prior to the next Distribution Date.
"Fairgrounds Square Loan": The Mortgage Loan identified as Loan
No. 10 on the Mortgage Loan Schedule.
"Fairgrounds Square REMIC": The REMIC constituted by the
Fairgrounds Square Loan (exclusive of Default Interest), collections thereon,
any REO Property acquired in respect thereof and amounts held from time to time
in the Collection Account and the Lower-Tier Distribution Account in respect
thereof, with respect to which the Bond Administrator, on behalf of the Trustee,
will make an election to be treated as a "real estate mortgage investment
conduit" within the meaning of the REMIC Provisions.
"Fairgrounds Square REMIC Declaration": That certain REMIC
Declaration dated as of July 31, 2000 with respect to the Fairgrounds Square
Loan.
"Fairgrounds Square REMIC Regular Interest": The uncertificated
"regular interest," within the meaning of Code Section 860G(a)(1), in the
Fairgrounds Square REMIC issued pursuant to the Fairgrounds Square REMIC
Declaration.
"Fairgrounds Square REMIC Residual Interest": The uncertificated
"residual interest," within the meaning of Code Section 860G(a)(2), in the
Fairgrounds Square REMIC issued pursuant to the Fairgrounds Square REMIC
Declaration.
"FDIC": The Federal Deposit Insurance Corporation, or any
successor thereto.
"FHA": The Federal Housing Administration.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Loan or any Mortgage Loan subject to repurchase by the related Mortgage
Loan Seller pursuant to Section 2.03(d) or Section 2.03(e), or any Mortgage Loan
subject to repurchase by the related Companion Holder, the recovery of all
Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and other
payments or recoveries (including proceeds of the final sale of any REO
Property) which the Servicer (or in the case of a Specially Serviced Loan, the
Special Servicer), in its reasonable judgment as evidenced by a certificate of a
Servicing Officer delivered to the Bond Administrator and the Custodian (and the
Servicer, if the Certificate is from the Special Servicer), expects to be
finally recoverable. The Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Servicer hereunder and the transfer of such records to a
successor servicer and (ii) five years following the termination of the Trust
Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fitch": Fitch, Inc., or its successor in interest.
"FNMA": The Federal National Mortgage Association, or any
successor thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act,
or such successor form as the Commission may specify from time to time.
"GACC": German American Capital Corporation, in its capacity as a
Mortgage Loan Seller, and its successors.
"GACC Purchase Agreement": The Mortgage Loan Purchase Agreement
dated as of September 1, 2000, between GACC and the Depositor, a copy of which
is attached hereto as Exhibit H.
"Global Certificates": The Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N and Class O Certificates.
"Grantor Trust": The grantor trust described in the Preliminary
Statement hereto.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other
environmental laws now existing, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory," "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Liquidation Report": A report substantially
containing the content described in Exhibit O-4 attached hereto, setting forth,
among other things, as of the close of business on the Determination Date
immediately preceding the respective Distribution Date, (i) the aggregate amount
of Net Liquidation Proceeds, for the current period and historically, and (ii)
the amount of Realized Losses occurring during the related Collection Period,
set forth on a Mortgage Loan-by-Mortgage Loan basis and with respect to each
Loan Pair, also set forth for each applicable Companion Loan.
"Historical Loan Modification Report": A report substantially
containing the content described in Exhibit O-3 attached hereto, setting forth,
among other things, those Mortgage Loans and Companion Loans which, as of the
close of business on the Determination Date immediately preceding the respective
Distribution Date, have been modified pursuant to this Agreement (i) during the
related Collection Period and (ii) since the Cut-off Date, showing the original
and the revised terms thereof.
"Holder": With respect to any Certificate, a Certificateholder;
with respect to any Lower-Tier Regular Interest or either Loan REMIC Regular
Interest, the Trustee; and with respect to either Loan REMIC Residual Interest,
the Trustee on behalf of the Class LR Certificateholders.
"Indemnified Party": As defined in Section 8.05(d).
"Indemnifying Party": As defined in Section 8.05(d).
"Independent": When used with respect to any specified Person,
any such Person who (i) does not have any direct financial interest, or any
material indirect financial interest, in any of the Depositor, the Trustee, the
Bond Administrator, the Servicer, the Special Servicer, any Companion Holder,
any Borrower or Manager or any Affiliate thereof, and (ii) is not connected with
any such Person thereof as an officer, employee, promoter, underwriter, Trustee,
Bond Administrator, partner, director or Person performing similar functions.
"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 tests 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 or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer nor the Special Servicer nor any
Companion Holder shall 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) addressed to the
Servicer, the Bond Administrator and the Trustee has been delivered to the
Trustee to that effect) or (ii) any other Person (including the Servicer, the
Special Servicer and any Companion Holder) if the Servicer, on behalf of itself,
the Trustee and the Bond Administrator, has received 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 (determined without regard to the exception
applicable for purposes of Section 860D(a) 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).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest coupons.
"Initial Resolution Period": The first 90-day period within which
a Mortgage Loan Seller may cure a Defect or breach of a representation and
warranty.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan and
if a Loan Pair is involved, the related Companion Loan (including any amounts
paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date
and any Class of Certificates (other than the Class Q-1, Class Q-2, Class R and
Class LR Certificates), an amount equal to interest for the related Interest
Accrual Period at the Pass-Through Rate for such Class on the related
Certificate Balance or Notional Balance, as applicable (provided, that for
interest accrual purposes any distributions in reduction of Certificate Balance
or Notional Balance, as applicable, as a result of allocations of Realized
Losses on the Distribution Date occurring in an Interest Accrual Period shall be
deemed to have been made on the first day of such Interest Accrual Period) minus
the amount of any Excess Prepayment Interest Shortfall allocated to such Class
with respect to such Distribution Date. Calculations of interest due in respect
of the Certificates shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date,
the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Interest Reserve Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Bond Administrator
pursuant to Section 3.05(c), which shall be entitled "Wells Fargo Bank
Minnesota, N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2000-C1 Mortgage Pass-Through Certificates, Interest
Reserve Account" and which must be an Eligible Account. The Interest Reserve
Account shall be an asset of the Lower-Tier REMIC.
"Interested Person": As of any date of determination, the
Depositor, the Servicer, Special Servicer, the Trustee, the Bond Administrator,
any Companion Holder, any Operating Advisor, any Borrower, any Manager of a
Mortgaged Property, any Independent Contractor engaged by the Special Servicer
pursuant to Section 3.17, or any Person known to a Responsible Officer of either
the Trustee or the Bond Administrator to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"LaSalle": LaSalle Bank National Association, in its capacity as
a Mortgage Loan Seller, and its successors.
"LaSalle Purchase Agreement": The Mortgage Loan Purchase
Agreement, dated as of September 1, 2000, between LaSalle and the Depositor, a
copy of which is attached hereto as Exhibit J.
"Liquidation Expenses": Expenses incurred by the Servicer, the
Special Servicer, the Trustee and the Bond Administrator in connection with the
liquidation of any Mortgage Loan or, if a Loan Pair is involved, the related
Companion Loan or the liquidation of an REO Property (including, without
limitation, legal fees and expenses, committee or referee fees, and, if
applicable, brokerage commissions, and conveyance taxes) and any Property
Protection Expenses incurred with respect to such Mortgage Loan and if a Loan
Pair is involved, the related Companion Loan, or such REO Property including
interest thereon at the Advance Rate not previously reimbursed from collections
or other proceeds therefrom.
"Liquidation Fee": An amount equal to 1.0% of all payments or
proceeds received in connection with the liquidation of any Specially Serviced
Loan.
"Liquidation Proceeds": The amount (other than Insurance
Proceeds) received in connection with (i) the taking of a Mortgaged Property (or
portion thereof) by exercise of the power of eminent domain or condemnation,
(ii) the liquidation of a Specially Serviced Loan through a trustee's sale,
foreclosure sale or otherwise or (iii) a sale of a Mortgage Loan or Loan Pair or
an REO Property in accordance with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan or Loan Pair,
the loan agreement, if any, between the related Originator and the Borrower,
pursuant to which such Mortgage Loan or Loan Pair was made.
"Loan Documents": With respect to any Mortgage Loan or Loan Pair,
the documents executed or delivered in connection with the origination of such
Mortgage Loan or Loan Pair or subsequently added to the related Mortgage File
(including, with respect to each Loan Pair, the applicable Co-Lender Agreement).
"Loan Number": With respect to any Mortgage Loan, the loan number
by which such Mortgage Loan was identified on the books and records of the
Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan Pair": Any of the Alliance Loan Pair, the Crowne Plaza Loan
Pair and the Crystal Park Loan Pair.
"Loan REMIC": Each of the Fairgrounds Square REMIC and the Towne
Square Apartments REMIC.
"Loan REMIC Balance": With respect to each Loan REMIC Regular
Interest, initially, an amount equal to the Stated Principal Balance as of the
Cut-off Date of the related Mortgage Loan, and from time to time, an amount
equal to such amount reduced by the amount of distributions thereon and Realized
Losses allocable thereto in all prior periods as described in Section 4.01(a)
hereof.
"Loan REMIC Declaration": Each of the Fairgrounds Square REMIC
Declaration and the Towne Square Apartments REMIC Declaration.
"Loan REMIC Interests": The Loan REMIC Regular Interests and the
Loan REMIC Residual Interests.
"Loan REMIC Loans": The Fairgrounds Square Loan and the Towne
Square Apartments Loan.
"Loan REMIC Regular Interest": Each of the Fairgrounds Square
REMIC Regular Interest and the Towne Square Apartments REMIC Regular Interest.
"Loan REMIC Residual Interest": Each of the Fairgrounds Square
REMIC Residual Interest and the Town Square Apartments REMIC Residual Interest.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to the related Loan Documents 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 Mortgage Loan and Section 3.07, 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 in
accordance with the terms of the related Mortgage Loan or Loan Pair.
"Lock-Box Agreement": With respect to any Mortgage Loan or Loan
Pair, the lock-box agreement, if any, between the related Originator and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lower-Tier Balance": With respect to any Class of Lower-Tier
Regular Interest, initially will equal the initial Certificate Balance of the
corresponding Class of Principal Balance Certificates, and from time to time
will equal such amount reduced by the amount of distributions of the Lower-Tier
Distribution Amount allocable to principal and Realized Losses allocable thereto
in all prior periods as described in Section 4.01(a) hereof.
"Lower-Tier Distribution Account": The trust account or accounts
(i) created and maintained as a separate trust account or accounts by the Bond
Administrator pursuant to Section 3.05(b), which shall be entitled "Wells Fargo
Bank Minnesota, N.A., as Trustee, in trust for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates, Lower-Tier Distribution Account" and which must be an Eligible
Account or (ii) maintained as a subaccount of the Distribution Account pursuant
to Section 3.05(b). The Lower-Tier Distribution Account shall be an asset of the
Lower-Tier REMIC, other than with respect to any amount therein representing the
proceeds of the Loan REMIC Residual Interests and the Wilton Prepayment Premium
Obligation.
"Lower-Tier Distribution Amount": As defined in Section
4.01(a)(ii).
"Lower-Tier Regular Interests": The Class A-1L, Class A-2L, Class
B-L, Class C-L, Class D-L, Class E-L, Class F-L, Class G-L, Class H-L, Class
J-L, Class K-L, Class L-L, Class M-L, Class N-L and Class O-L Interests, issued
by the Lower-Tier REMIC to the Trustee and held as assets of the Upper-Tier
REMIC. Each Lower-Tier Regular Interest (i) relates to a separate Class of
Principal Balance Certificates and to a separate Class X Component, (ii) is
uncertificated, (iii) has an initial Lower-Tier Balance equal to the initial
Certificate Principal Balance of its related Class of Principal Balance
Certificates, (iv) has a Pass-Through Rate equal to the Weighted Average Net
Mortgage Pass-Through Rate (treating for this purpose the Loan REMIC Regular
Interests as Mortgage Loans), (v) has a "latest possible maturity date," within
the meaning of Treasury Regulations section 1.860G-1(a), that is the Scheduled
Final Distribution Date, and (vi) is entitled to the distributions in the
amounts and at the times specified in Section 4.01(a).
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Excess
Interest thereon and the Loan REMIC Loans), the Loan REMIC Regular Interests,
collections thereon, any REO Property acquired in respect thereof, amounts held
from time to time in the Collection Account and the Lower-Tier Distribution
Account in respect thereof, the Interest Reserve Account and the Excess
Liquidation Proceeds Account (exclusive of amounts held on behalf of a Companion
Holder).
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan or Loan
Pair, 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 Mortgage Loan or Loan Pair, any
property manager for the related Mortgaged Properties.
"Master Servicing Fee": With respect to each Mortgage Loan and
Companion Loan and for any Distribution Date, an amount per Interest Accrual
Period equal to the product of (i) one-twelfth of the Master Servicing Fee Rate
and (ii) the Stated Principal Balance of such Mortgage Loan (or the unpaid
principal balance of such Companion Loan) as of the Due Date in the immediately
preceding Collection Period (without giving effect to payments of principal on
such Mortgage Loan or Companion Loan on such Due Date).
"Master Servicing Fee Rate": With respect to each Mortgage Loan,
a rate equal to 0.03% per annum and with respect to each Companion Loan, the per
annum rate set forth on Exhibit B-2 hereto.
"Maturity Date": With respect to each Mortgage Loan and any
related Companion Loan, the Maturity Date as set forth on the Mortgage Loan
Schedule or Companion Loan Schedule, as applicable.
"Mezzanine Loan": Either the Allied Mezzanine Loan or the Crowne
Plaza Mezzanine Loan, as applicable.
"Modified Mortgage Loan": Any Specially Serviced Loan which has
been modified by the Special Servicer pursuant to Section 3.26 in a manner that:
(a) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to,
bringing current Monthly Payments with respect to such
Mortgage Loan or Companion Loan), including any reduction
in the Monthly Payment;
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less
than the fair market value (as is), as determined by an
appraisal delivered to the Special Servicer (at the
expense of the related Borrower and upon which the Special
Servicer may conclusively rely), of the property to be
released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for
such Mortgage Loan or reduces the likelihood of timely
payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan or Companion
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 (but not excluding any constant Monthly Payment due on a Balloon Loan),
which is payable by the related Borrower on such Due Date under the related
Note. 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.
"Morgan Guaranty": Morgan Guaranty Trust Company of New York, in
its capacity as a Mortgage Loan Seller, and its successors.
"Morgan Guaranty Purchase Agreement": The Mortgage Loan Purchase
Agreement, dated as of September 1, 2000, between Morgan Guaranty and the
Depositor, a copy of which is attached as Exhibit I.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on or first priority ownership interest in a Mortgaged
Property securing a Note.
"Mortgage File": With respect to any Mortgage Loan and if a Loan
Pair is involved, any related Companion Loan, collectively, the mortgage
documents listed in Section 2.01(i) through (xix) pertaining to such particular
Mortgage Loan or Loan Pair and any additional documents required to be added to
such Mortgage File pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund. The mortgage loans originally so transferred, assigned and held
are identified on the Mortgage Loan Schedule as of the Closing Date. Such term
shall include any REO Loan, Specially Serviced Loan or any Mortgage Loan that
has been defeased in whole or in part.
"Mortgage Loan Event of Default": With respect to any Mortgage
Loan or Companion Loan, an "event of default" under the related Loan Documents.
"Mortgage Loan Purchase Agreements": Each of the GACC Purchase
Agreement, the Morgan Guaranty Purchase Agreement and the LaSalle Purchase
Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in
the Trust Fund as of the Closing Date being attached hereto as Exhibit B-1,
which list shall set forth the following information with respect to each
Mortgage Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of
the related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date and
that the Mortgage Loan is a fixed rate Mortgage Loan;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the (A) Maturity Date for each Mortgage Loan and (B) with
respect to each Mortgage Loan with an Anticipated
Repayment Date, the Anticipated Repayment Date;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(i) whether such Mortgage Loan has an Anticipated Repayment
Date;
(j) the Primary Servicing Fee Rate (if applicable);
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
and
(l) whether such Mortgage Loan has a hard lock-box or a
springing lock-box.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Sellers": Each of GACC, Morgan Guaranty and
LaSalle.
"Mortgage Rate": With respect to each Mortgage Loan or Companion
Loan and any Interest Accrual Period, the annual rate, not including any Excess
Rate, at which interest accrues on such Mortgage Loan or Companion Loan during
such period (in the absence of a default), as set forth on the Mortgage Loan
Schedule or Companion Loan Schedule, as applicable. The "Mortgage Rate" for
purposes of calculating the Net Mortgage Pass-Through Rate and the Weighted
Average Net Mortgage Pass-Through Rate (and the rate of the related Loan REMIC
Regular Interest in the case of the Fairgrounds Square Loan and the Towne Square
Apartments Loan) shall be the Mortgage Rate of such Mortgage Loan without giving
effect to any Default Rate and 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 a reduction in interest or principal
due to a modification pursuant to Section 3.30 hereof.
"Mortgaged Property": The underlying property securing a Mortgage
Loan or Loan Pair, including any REO Property, consisting of a fee simple
estate, and, with respect to certain Mortgage Loans or Loan Pairs, a leasehold
estate or both a leasehold estate and a fee simple estate, or a leasehold estate
in a portion of the property and a fee simple estate in the remainder, in a
parcel of land improved by a commercial property, together with any personal
property, fixtures, leases and other property or rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(e).
"Net Income": With respect to any REO Property, all income
received in connection with such REO Property, less any operating expenses,
including, but not limited to, utilities, real estate taxes, property management
fees, insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received
with respect to any Mortgage Loan or Loan Pair net of the amount of (i)
Liquidation Expenses incurred with respect thereto and, (ii) with respect to
proceeds received in connection with the taking of a Mortgaged Property (or
portion thereof) by the power of eminent domain in condemnation, amounts
required to be applied to the restoration or repair of the related Mortgaged
Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage
Loan (other than the Fairgrounds Square Loan and the Towne Square Apartments
Loan), the Fairgrounds Square Loan REMIC Regular Interest and the Towne Square
Apartments Loan REMIC Regular Interest and any Distribution Date, the per annum
rate equal to the Mortgage Rate for such Mortgage Loan or Loan REMIC Regular
Interest, minus, for any such Mortgage Loan or Loan REMIC Regular Interest, the
aggregate of the applicable Servicing Fee Rate and Trustee Fee Rate.
Notwithstanding the foregoing, if any such Mortgage Loan or Loan REMIC Regular
Interest does not accrue interest on the basis of a 360-day year consisting of
twelve 30-day months, then the "Net Mortgage Pass-Through Rate" of such Mortgage
Loan or Loan REMIC Regular Interest for any Interest Accrual Period will be the
annualized rate at which interest would have to accrue in respect of such
Mortgage Loan or Loan REMIC Regular Interest on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued in respect of such Mortgage Loan or Loan REMIC Regular
Interest at the related Mortgage Rate less the Servicing Fee Rate and the
Trustee Fee Rate during such Interest Accrual Period; provided, however, that
with respect to each such Mortgage Loan or Loan REMIC Regular Interest, the
Mortgage Rate for the one-month period (i) preceding the Due Dates in (a)
January and February in each year that is not a leap year or (b) February only
in each year that is a leap year and (ii) preceding the Due Date in March, will
be the per annum rate stated in the related Note.
"Net Prepayment Interest Excess": The excess amount, if any, that
the aggregate of all Prepayment Interest Excess for all Mortgage Loans exceeds
the aggregate of all Prepayment Interest Shortfalls for all Mortgage Loans as of
any Distribution Date.
"Net Prepayment Interest Shortfall": Means the amount, if any,
that the aggregate of Prepayment Interest Shortfalls for all Mortgage Loans that
are not Specially Serviced Loans exceed the Prepayment Interest Excess for such
Mortgage Loans as of any Distribution Date.
"Net REO Proceeds": With respect to each REO Property, REO
Proceeds with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of
the Trust Fund (and in the case of a Mortgaged Property securing a Loan Pair,
the related Companion Holder) if the Trust Fund or Companion Holder has the
right to renegotiate the terms of such lease, including any lease renewed or
extended on behalf of the Trust Fund and any related Companion Holder.
"NOI Adjustment Worksheet": A report prepared by the Servicer or
the Special Servicer, as the case may be, substantially containing the content
(and related data fields) described in Exhibit O-8 attached hereto, presenting
the computations made in accordance with the methodology described in said
Exhibit O-8 to "normalize" the full year-end net operating income or net cash
flow and debt service coverage numbers used in the other reports required by
this Agreement, sent to the Bond Administrator (or, with respect to the Special
Servicer as to the related data fields, the Servicer) with each year-end annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any portion of an Advance proposed to
be made or previously made which has not been previously reimbursed to the
Servicer, the Special Servicer or the Trustee, as applicable, and which, in the
good faith business judgment of the Servicer, the Special Servicer or the
Trustee, as applicable, will not or, in the case of a proposed Advance, would
not be ultimately recoverable from late payments, Insurance Proceeds,
Liquidation Proceeds and other collections on or in respect of the related
Mortgage Loan or Loan Pair. The judgment or determination by the Servicer, the
Special Servicer or the Trustee that it has made a Nonrecoverable Advance or
that any proposed Advance, if made, would constitute a Nonrecoverable Advance
shall be evidenced in the case of the Servicer or the Special Servicer, as
applicable, by a certificate of a Servicing Officer delivered to the Trustee,
the Bond Administrator and the Depositor and, in the case of the Trustee, by a
certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the Bond Administrator and the Servicer, which in each case sets forth such
judgment or determination and the procedures and considerations of the Servicer,
the Special Servicer or the Trustee, as applicable, forming the basis of such
determination (including, but not limited to, information selected by the Person
making such judgment or determination in its good faith discretion, such as
related income and expense statements, rent rolls, occupancy status, property
inspections, Servicer, Special Servicer or Trustee inquiries, third party
engineering and environmental reports, and an appraisal conducted by an MAI
appraiser in accordance with Appraisal Institute standards or any Updated
Appraisal thereof conducted within the past 12 months; copies of such documents
to be included with the certificate of the Servicing Officer or the Responsible
Officer). Notwithstanding the above, the Trustee shall be entitled to rely upon
any determination by the Servicer or the Special Servicer, as applicable, that
any Advance previously made is a Nonrecoverable Advance or that any proposed
Advance would, if made, constitute a Nonrecoverable Advance.
"Note": With respect to any Mortgage Loan or Companion Loan as of
any date of determination, the note or other evidence of indebtedness and/or
agreements evidencing the indebtedness of a Borrower under such Mortgage Loan or
Companion Loan, including any amendments or modifications, or any renewal or
substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Bond
Administrator by the Depositor, the Servicer or any Holder of the Controlling
Class representing greater than a 50% Percentage Interest in such Class pursuant
to Section 9.01(c).
"Notional Amount" or "Notional Balance": With respect to the
Class X Certificates, (a) on or prior to the first Distribution Date, a notional
principal amount equal to the aggregate initial Notional Balance of such Class,
as specified in the Preliminary Statement hereto, and (b) as of any Distribution
Date after the first Distribution Date, a notional principal amount equal to the
aggregate Lower-Tier Balances immediately prior to such Distribution Date. With
respect to each Class X Component, (a) on or prior to the first Distribution
Date, an initial notional principal amount equal to the initial Lower-Tier
Balance of the related Class of Lower-Tier Regular Interests, and (b) as of any
Distribution Date after the first Distribution Date, a notional principal amount
equal to the Lower-Tier Balance of the related Class of Lower-Tier Regular
Interests immediately prior to such Distribution Date.
"Officers' Certificate": A certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Servicer or Special Servicer customarily performing functions similar to those
performed by any of the above designated officers, any Servicing Officer and
also with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, or an authorized officer of the Depositor, and delivered to
the Depositor, the Trustee, the Bond Administrator or the Servicer, as the case
may be.
"Operating Advisor": With respect to any Loan Pair, the operating
advisor selected by the related Companion Holder pursuant to Section 3.31 and
any successor thereto.
"Operating Statement Analysis Report": With respect to each
Mortgage Loan or Companion Loan and each related Mortgaged Property and REO
Property, a report substantially containing the content described in Exhibit O-7
attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be counsel for the Depositor, the Special Servicer or the
Servicer, as the case may be, acceptable to the Bond Administrator and the
Trustee, except that any opinion of counsel relating to (a) qualification of the
Upper-Tier REMIC, Lower-Tier REMIC or either Loan REMIC as a REMIC or the
imposition of tax under the REMIC Provisions on any income or property of any
REMIC, (b) compliance with the REMIC Provisions (including application of the
definition of "Independent Contractor"), (c) qualification of the Grantor Trust
as a grantor trust under the Code, or (d) a resignation of the Servicer pursuant
to Section 6.04, must be an opinion of counsel who is Independent of the
Depositor and the Servicer.
"Originator": Any of (i) the Mortgage Loan Sellers, (ii) with
respect to any Mortgage Loan acquired by a Mortgage Loan Seller, the originator
of such Mortgage Loan, and (iii) with respect to any Companion Loan, GACC.
"Ownership Interest": Any record or beneficial interest in a
Class R or Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Servicer or the Trustee pursuant to Section 4.06. Each reference to the payment
or reimbursement of a P&I Advance shall be deemed to include, whether or not
specifically referred to and without duplication, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such P&I Advance to and including the date of payment or reimbursement.
"Paid After Determination Date Report": An electronic report
substantially in the form attached as Exhibit O-13.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class Q-1, Class Q-2, Class R and Class LR Certificates), the
Pass-Through Rate for such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1 Class A-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class X Class X Pass-Through Rate
Class B Class B Pass-Through Rate
Class C Class C Pass-Through Rate
Class D Class D Pass-Through Rate
Class E Class E Pass-Through Rate
Class F Class F Pass-Through Rate
Class G Class G Pass-Through Rate
Class H Class H Pass-Through Rate
Class J Class J Pass-Through Rate
Class K Class K Pass-Through Rate
Class L Class L Pass-Through Rate
Class M Class M Pass-Through Rate
Class N Class N Pass-Through Rate
Class O Class O Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests, the
Weighted Average Net Mortgage Pass-Through Rate. With respect to each Loan REMIC
Regular Interest, the Mortgage Rate of the related Loan REMIC Loan.
"Paying Agent": The paying agent appointed pursuant to Section
5.04.
"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 Certificate (except the Class Q-1, Class
Q-2, Class R and Class LR Certificates), the percentage interest is equal to the
initial denomination of such Certificate divided by the initial Certificate
Balance or Notional Balance, as applicable, of such Class of Certificates. With
respect to any Class Q-1, Class Q-2, Class R or Class LR Certificate, the
percentage interest is set forth on the face thereof.
"Performing Mortgage Loan": A Mortgage Loan that is not a
Specially Serviced Loan.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Servicer, the
Trustee, the Bond Administrator or any of their respective Affiliates and having
at all times the required ratings, if any, provided for in this definition,
unless each Rating Agency shall have confirmed in writing to the Servicer that a
lower rating would not, in and of itself, result in a downgrade, qualification
or withdrawal of the then-current ratings assigned to the Certificates:
(a) direct obligations of, or obligations fully guaranteed as
to payment of principal and interest by, the United States
or any agency or instrumentality thereof provided such
obligations are backed by the full faith and credit of the
United States of America including, without limitation,
obligations of the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration
(certificates of beneficial ownership), the General
Services Administration (participation certificates), the
U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed
participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit
bonds); provided, however, that each investment described
in this clause must (A) have a predetermined fixed dollar
amount of principal due at maturity, which cannot vary or
change, (B) if bearing a variable rate of interest, have
its interest rate tied to a single interest rate index
plus a fixed spread (if any) and move proportionately with
that index, and (C) not be subject to liquidation prior to
its maturity;
(b) Federal Housing Administration debentures;
(c) obligations of the following United States government
sponsored agencies: Federal Home Loan Mortgage Corp. (debt
obligations), the Farm Credit System (consolidated
systemwide bonds and notes), the Federal Home Loan Banks
(consolidated debt obligations), the Federal National
Mortgage Association (debt obligations), the Student Loan
Marketing Association (debt obligations), the Financing
Corp. (debt obligations), and the Resolution Funding Corp.
(debt obligations); provided, however, that each
investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at
maturity, which cannot vary or change, (B) if bearing a
variable rate of interest, its interest rate tied to a
single interest rate index plus a fixed spread (if any)
and move proportionately with that index, and (C) not be
subject to liquidation prior to their maturity;
(d) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase
agreements, with maturities of not more than 365 days, of
any bank, the short term obligations of which are rated in
the highest short term rating category by each Rating
Agency (or, if not rated by S&P or Fitch, otherwise
acceptable to S&P or Fitch, as applicable, as confirmed in
writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates;
provided, however, that the investment described in this
clause must (A) have a predetermined fixed dollar amount
of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, have its
interest rate tied to a single interest rate index plus a
fixed spread (if any) and move proportionately with that
index, and (C) not be subject to liquidation prior to its
maturity;
(e) fully Federal Deposit Insurance Corporation-insured demand
and time deposits in, or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company,
savings and loan association or savings bank, and, if such
demand and time deposits in, or certificates of deposit
of, or bankers' acceptances are not fully insured by the
Federal Deposit Insurance Corporation, the short term
obligations of such bank or trust company, savings and
loan association or savings bank are rated in the highest
short term rating category by each Rating Agency (or, if
not rated by S&P or Fitch, otherwise acceptable to S&P or
Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, however,
that each investment described in this clause must (A)
have a predetermined fixed dollar amount of principal due
at maturity, which cannot vary or change, (B) if bearing a
variable rate of interest, its interest rate tied to a
single interest rate index plus a fixed spread (if any)
and move proportionately with that index, and (C) not be
subject to liquidation prior to their maturity;
(f) debt obligations with maturities of not more than 365 days
rated by each Rating Agency (or, if not rated by S&P or
Fitch, otherwise acceptable to S&P or Fitch, as
applicable, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings
assigned to the Certificates) in its highest long-term
unsecured rating category; provided, however, that each
investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at
maturity, which cannot vary or change, (B) if bearing a
variable rate of interest, have its interest rate tied to
a single interest rate index plus a fixed spread (if any)
and move proportionately with that index, and (C) not be
subject to liquidation prior to its maturity;
(g) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one
year after the date of issuance thereof) with maturities
of not more than 365 days and that is rated by each Rating
Agency (or, if not rated by S&P or Fitch, otherwise
acceptable to S&P or Fitch, as applicable, as confirmed in
writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates) in its
highest short-term unsecured debt rating; provided,
however, that each investment described in this clause
must (A) have a predetermined fixed dollar amount of
principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, have its
interest rate tied to a single interest rate index plus a
fixed spread (if any) and move proportionately with that
index, and (C) not be subject to liquidation prior to
their maturity;
(h) units of taxable money market mutual funds, issued by
regulated investment companies, which seek to maintain a
constant net asset value per share (including the
Federated Prime Obligation Money Market Fund (the "Fund"))
so long as any such fund is rated by each Rating Agency in
its highest short-term unsecured debt ratings category
(or, if not rated by S&P or Fitch, otherwise acceptable to
S&P or Fitch, as applicable, as confirmed in writing that
such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates); and
(i) any other demand, money market or time deposit, demand
obligation or any other obligation, security or
investment, provided that each Rating Agency has confirmed
in writing to the Servicer, Special Servicer, Trustee or
the Bond Administrator, as applicable, that such
investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates;
provided, however, that no instrument or security shall be a Permitted
Investment (a) unless such instrument is a "cash flow investment" earning a
passive return in the nature of interest pursuant to Code Section 860G(a)(6) or
(b) if (i) such instrument or security evidences a right to receive only
interest payments or (ii) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment or (c) if it
may be redeemed of a price below the purchase price. No Permitted Investment may
be purchased at a price in excess of par or sold prior to maturity if such sale
would result in a loss of principal or a tax on a prohibited transaction under
Section 860F of the Code.
"Permitted Transferee": With respect to a Class R or Class LR
Certificate, any Person or agent thereof that is a Qualified Institutional
Buyer, an Affiliated Person or an Institutional Accredited Investor, other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar who is unable to provide an Opinion of Counsel (provided
at the expense of such Person or the Person requesting the Transfer) to the
effect that the Transfer of an Ownership Interest in any Class R or Class LR
Certificate to such Person will not cause the Upper-Tier REMIC, the Lower-Tier
REMIC or either Loan REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S.
Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, 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(k).
"Prepayment Assumption": The assumption that each Mortgage Loan
with an Anticipated Repayment Date prepays on such date and that each other
Mortgage Loan does not prepay prior to its respective Maturity Date.
"Prepayment Date": As defined in Section 2.03(d).
"Prepayment Interest Excess": With respect to any Distribution
Date, the amount of the excess in collections of interest that arises with
respect to any Mortgage Loan if a Borrower makes a full Principal Prepayment or
a Balloon Payment during the related Collection Period, and the date such
payment was made (or, in the case of a Balloon Payment, the date through which
interest thereon accrues) occurred after the Due Date for such Mortgage Loan in
the related Collection Period.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, the amount of any shortfall in collections of interest (adjusted to the
applicable Net Mortgage Pass-Through Rate plus the Trustee Fee Rate) resulting
from a full Principal Prepayment or Balloon Payment on such Mortgage Loan during
the related Collection Period and prior to the related Due Date.
"Prepayment Premium": Payments received on a Mortgage Loan or
Companion Loan as the result of a Principal Prepayment thereon, not otherwise
due thereon in respect of principal or interest, which are intended to
compensate the holder of the related Note for prepayment. Except as otherwise
expressly provided herein, "Prepayment Premium" shall include amounts paid by
GACC pursuant to the Wilton Prepayment Premium Obligation.
"Primary Servicing Fee Rate": As specified on Exhibit B-2 hereto.
"Principal Allocation Fraction": With respect to any Distribution
Date and each of Class A-1, Class A-2, Class B, Class C, Class D, Class E and
Class F Certificates, a fraction the numerator of which is the Principal
Distribution Amount allocable to such Class of Certificate for such Distribution
Date and the denominator of which is the Principal Distribution Amount for all
Classes of Certificates as of such Distribution Date.
"Principal Balance Certificate": The Class A-1, Class A-2, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N and Class O Certificates.
"Principal Distribution Amount": For any Distribution Date, an
amount equal to the sum of:
(a) the principal component of all scheduled Monthly Payments
(other than Balloon Payments) due on the Mortgage Loans on
or before the related Due Date (if received or advanced);
(b) the principal component of all Assumed Scheduled Payments
due on or before the related Due Date (if received or
advanced) with respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment;
(c) the Stated Principal Balance of each Mortgage Loan that
was, during the related Collection Period, repurchased
from the Trust Fund in connection with the breach of a
representation or warranty pursuant to Section 2.03,
purchased pursuant to Section 3.18, or purchased from the
Trust Fund pursuant to Section 9.01;
(d) the portion of Unscheduled Payments (to the extent not
included in clause (iii)) allocable to principal of any
Mortgage Loan that was liquidated during the related
Collection Period;
(e) the principal component of all Balloon Payments and, to
the extent not included in the preceding clauses, any
other principal payment on any Mortgage Loan received on
or after the Maturity Date thereof, to the extent received
during the related Collection Period;
(f) to the extent not included in the preceding clauses (c) or
(d), all other Principal Prepayments on Mortgage Loans
received in the related Collection Period; and
(g) to the extent not included in the preceding clauses, any
other full or partial recoveries in respect of principal
of Mortgage Loans, including Insurance Proceeds,
Liquidation Proceeds and Net REO Proceeds received in the
related Collection Period (in the case of clauses (a)
through (g) net of any reimbursement for related
outstanding P&I Advances allocable to principal).
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by the
Borrower on a Mortgage Loan or Loan Pair which is received in advance of its
scheduled Due Date and which is not accompanied by an amount of interest
representing the full amount of scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global Certificates with respect to the Class X, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates if and so long as such class of Certificates is registered in the
name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan or Loan Pair, any
advance made by the Servicer, the Special Servicer or the Trustee, as
applicable, in respect of Property Protection Expenses or any expenses incurred
to protect, preserve and enforce the security for a Mortgage Loan or Loan Pair
or to pay taxes and assessments or insurance premiums with respect to the
related Mortgaged Property, to the extent the making of any such advance is
specifically provided for in this Agreement, including, but not limited to, as
provided in Section 3.04 and Section 3.24, as applicable. Each reference to the
payment or reimbursement of a Property Advance shall be deemed to include,
whether or not specifically referred to, payment or reimbursement of interest
thereon at the Advance Rate from and including the date of the making of such
Advance to and including the date of payment or reimbursement.
"Property Protection Expenses": (i) With respect to any Mortgage
Loan, any costs and expenses incurred by the Servicer or the Special Servicer
pursuant to Sections 3.04, 3.08(a), 3.10(b), 3.10(e), 3.10(f), 3.10(h), 3.10(i),
3.10(k), 3.11, 3.12(e), 3.17(a), 3.17(b), 3.17(c), 3.18(c) or 3.28(a) or
indicated herein as being a cost or expense of the Trust Fund or the applicable
Loan REMIC, the Lower-Tier REMIC, or Upper-Tier REMIC to be advanced by the
Servicer or the Special Servicer, as applicable, and (ii) with respect to any
Companion Loan, any costs and expenses incurred by the Servicer or the Special
Servicer pursuant to Sections 3.04, 3.08(a), 3.10(b), 3.10(h), 3.10(i), 3.10(k),
3.11, 3.12(e), the second and third paragraphs of Section 3.17(b) (except for
expenses or Advances in connection with any REMIC taxes or REMIC-related tax
matters), 3.18(c), 3.18(h) or 3.28(a) or indicated herein as being a cost or
expense of the related Companion Holder to be advanced by the Servicer or the
Special Servicer, as applicable.
"Prospectus": The Depositor's Prospectus Supplement dated
September 11, 2000 relating to the Class A-1, Class A-2, Class B, Class C, Class
D and Class E Certificates.
"PTCE 95-60": Prohibited Transaction Class Exemption 95-60.
"Qualified Institutional Buyer": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company qualified to write the related insurance
policy in the relevant jurisdiction which shall have a claims paying ability of
"A" or better by Fitch (or, if such company is not rated by Fitch, is rated at
least A-IX by A.M. Best's Key Rating Guide), and an insurance financial strength
rating of "A" or better by S&P (ii) in the case of public liability insurance
policies required to be maintained with respect to REO Properties in accordance
with Section 3.08(a), shall have a claims paying ability of "A" or better by
Fitch (or, if such company is not rated by Fitch, is rated at least A-IX by A.M.
Best's Key Rating Guide), in the case of S&P, an insurance financial strength
rating of "A" or better and (iii) in the case of the fidelity bond and the
errors and omissions insurance required to be maintained pursuant to Section
3.08(c), shall have a claims paying ability rated by each Rating Agency no lower
than two ratings categories (without regard to pluses or minuses or numeric
qualifications) lower than the highest rating of any outstanding Class of
Certificates from time to time (or if such company is not rated by Fitch, is
rated at least A-VIII by A.M. Best's Key Rating Guide), but in no event lower
than "A" by Fitch and in the case of S&P, an insurance financial strength rating
of "BBB" or better, unless in any such case each of the Rating Agencies has
confirmed in writing that obtaining the related insurance from an insurance
company that is not rated by each of the Rating Agencies (subject to the
foregoing exceptions) or that has a lower claims-paying ability than such
requirements shall not result, in and of itself, in a downgrade, qualification
or withdrawal of the then-current ratings by such Rating Agency to any Class of
Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified
mortgage" within the meaning of Code Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage), or any substantially similar
successor provision.
"Qualifying Substitute Mortgage Loan": In the case of a Removed
Mortgage Loan, a Mortgage Loan (or Mortgage Loans in the event that a Removed
Mortgage Loan includes a related Cross-Collateralized Mortgage Loan, each of)
which, on the date of substitution, (i) has a principal balance, after deduction
of the principal portion of the Monthly Payment due in the month of
substitution, not in excess of the Stated Principal Balance of the Removed
Mortgage Loan; (ii) is accruing interest at a rate of interest at least equal to
that of the Removed Mortgage Loan; (iii) has a fixed Mortgage Rate; (iv) is
accruing interest on the same basis (for example, a 360-day year consisting of
twelve 30-day months) as the Removed Mortgage Loan; (v) has a remaining term to
stated maturity not greater than, and not more than two years less than, that of
the Removed Mortgage Loan and a current loan-to-value ratio (equal to the
principal balance on the date of substitution divided by its appraised value as
determined by an appraisal dated not more than twelve months prior the date of
substitution) not higher than the then-current loan-to-value ratio of the
Removed Mortgage Loan; (vi) will comply with all of the representations and
warranties relating to Mortgage Loans set forth in the related Mortgage Loan
Purchase Agreement, as of the date of substitution; (vii) has an Environmental
Report relating to the related Mortgaged Property in its Mortgage File; and
(viii) as to which the Bond Administrator and the Trustee have received an
Opinion of Counsel, at the related Mortgage Loan Seller's expense, that such
Mortgage Loan is a "qualified replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; provided that no Mortgage Loan may have a
Maturity Date after the date three years prior to the Rated Final Distribution
Date, and provided, further, that no such Mortgage Loan shall be substituted for
a Removed Mortgage Loan unless the Trustee and the Bond Administrator have
received confirmation in writing by each Rating Agency that such substitution
will not in and of itself result in the downgrade, qualification or withdrawal
of the rating assigned by such Rating Agency to any Class of Certificates then
rated by such Rating Agency; provided, further, that (i) the Directing
Certificateholder has consented to such substitution and (ii) with respect to
any substitution of any Mortgage Loan that is part of a Loan Pair, the related
Operating Advisor has consented to such substitution; provided, further, that
the related Mortgage Loan Seller deposits into the Collection Account, the
Substitution Shortfall Amount, if any. In the event that one mortgage loan is
substituted for one or more Removed Mortgage Loans, then (a) the principal
balance referred to in clause (i) above shall be determined on the basis of
aggregate principal balances and (b) the rates referred to in clauses (ii) and
(iii) above and the remaining term to stated maturity referred to in clause (v)
above shall be determined on a weighted average basis. Whenever a Qualifying
Substitute Mortgage Loan is substituted for a Removed Mortgage Loan pursuant to
this Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in August,
2033.
"Rating Agency": Either of S&P or Fitch. References herein to the
highest long-term unsecured debt rating category of a Rating Agency shall mean
"AAA" with respect to both Fitch and S&P, and in the case of any other rating
agency shall mean such highest rating category or better without regard to any
plus or minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings
or other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans immediately following
the Determination Date preceding such Distribution Date. In the case of a Loan
REMIC, a Realized Loss with respect to the related Mortgage Loan shall be a
Realized Loss with respect to the related Loan REMIC Regular Interest.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.0l (viii).
"Record Date": With respect to each Distribution Date, the close
of business on the last day of the calendar month preceding the month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N and Class O Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class X, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates issued as such on the Closing Date.
"Regulation S Investor": With respect to a transferee of an
interest in a Regulation S Global Certificate, a transferee that acquires such
interest pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code and the REMIC Provisions.
"REMIC Certificates": The Certificates other than the Class Q-1
and Class Q-2 Certificates.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Removed Mortgage Loan": A Mortgage Loan (and any related
Cross-Collateralized Loan) which is repurchased from the Trust Fund pursuant to
the terms hereof or as to which one or more Qualifying Substitute Mortgage Loans
are substituted.
"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:
(a) 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);
(b) 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;
(c) any amount received or accrued, directly or indirectly,
with respect to such REO Property if any Person Directly
Operates such REO Property;
(d) 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
(e) 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": As defined in Section 3.17(b).
"REO Loan": Any Mortgage Loan or Companion Loan as to which the
related Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related
REO Loan, all revenues received by the Special Servicer with respect to such REO
Property or REO Loan which do not constitute Liquidation Proceeds.
"REO Property": A Mortgaged Property, title to which has been
acquired by the Special Servicer on behalf of the Trust Fund (and, in the case
of a Loan Pair, also for the benefit of the related Companion Holder) through
foreclosure, deed in lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the
content described in Exhibit O-5 attached hereto, setting forth, among other
things, with respect to each REO Property that was included wholly or partially
in the Trust Fund as of the close of business on the Determination Date
immediately preceding the respective Distribution Date, (i) the acquisition date
of such REO Property, and (ii) 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).
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage
Loan that is substituted for one or more Removed Mortgage Loans.
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased pursuant to Sections 2.03(d) or 2.03(e) or 9.01, or any Specially
Serviced Loan or any REO Loan to be sold or repurchased pursuant to Section
3.18, an amount, calculated by the Servicer or the Special Servicer, as
applicable, equal to:
(a) the unpaid principal balance of such Mortgage Loan as of
the Due Date as to which a payment was last made by the
Borrower (less any Advances previously made on account of
principal); plus
(b) unpaid accrued interest from the Due Date as to which
interest was last paid by the Borrower up to the Due Date
in the month following the month in which the purchase or
repurchase occurred at a rate equal to the Mortgage Rate
on the unpaid principal balance of such Mortgage Loan
(less any Advances previously made on account of
interest); plus
(c) any unreimbursed Advances, together with the Advance
Interest Amount, and without duplication, any unpaid
Servicing Fees, Trustee Fees and Special Servicing
Compensation allocable to such Mortgage Loan; plus
(d) in the event that the Mortgage Loan is required to be
repurchased pursuant to Section 2.03(d) or Section
2.03(e), any Trust Fund expenses allocable to such
Mortgage Loan and any other expenses reasonably incurred
or to be incurred by the Servicer, the Special Servicer,
the Bond Administrator or 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; less
(e) in the event that the Mortgage Loan is required to be
repurchased pursuant to Section 2.03(d) or Section
2.03(e), any amounts held in a cash reserve (or proceeds
of a letter of credit) pursuant to Section 2.02 relating
to such Mortgage Loan;
provided, that in the event that any Mortgage Loan to be
repurchased pursuant to Section 2.03(d) or Section 2.03(e)
is part of a Cross-Collateralized Group (but not part of a
Loan Pair), the "Repurchase Price" shall also include the
"Repurchase Price" (as calculated pursuant to this
definition) for all the other Mortgage Loans in such
Cross-Collateralized Group.
"Request for Release": A request for a release signed by a
Servicing Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan or
Companion Loan, reserve accounts, if any, established pursuant to the Mortgage
or the Loan Agreement and any Escrow Account. Any Reserve Account may be a
sub-account of a related Cash Collateral Account. Any Reserve 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 Mortgage Loan or Companion Loan and Section 3.07,
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 Account, if applicable, or the Collection Account or for
the purposes set forth under the related Mortgage Loan or Companion Loan.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a breach with respect to any
Mortgage Loan, the 90-day period following the end of the
applicable Initial Resolution Period;
(b) for purposes of remediating a Defect with respect to any
Mortgage Loan that is and remains a Performing Mortgage
Loan throughout the applicable Initial Resolution Period,
the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such
Initial Resolution Period and (ii) the 45th day following
the applicable Mortgage Loan Seller's receipt of written
notice from the Servicer or the Special Servicer of the
occurrence of any Servicing Transfer Event with respect to
such Mortgage Loan subsequent to the end of such Initial
Resolution Period;
(c) for purposes of remediating a Defect with respect to any
Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period,
but as to which a Servicing Transfer Event occurs during
such Initial Resolution Period, the period commencing at
the end of the applicable Initial Resolution Period and
ending on, and including, the 90th day following the
earlier of (i) the end of such Initial Resolution Period
and (ii) the applicable Mortgage Loan Seller's receipt of
written notice from the Servicer or the Special Servicer
of the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Defect with respect to any
Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period,
zero (-0-) days, provided that, if the applicable Mortgage
Loan Seller did not receive written notice from the
Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer
Event will be deemed to have occurred during such Initial
Resolution Period and clause (c) of this definition will
be deemed to apply.
"Responsible Officer": (i) any officer of the Asset-Backed
Securities Trust Services Group of the Bond Administrator (and, in the event
that the Bond Administrator is the Certificate Registrar or the Paying Agent, of
the Certificate Registrar or the Paying Agent, as applicable) and (ii) any
officer of the Trustee assigned to the Corporate Trust Office with direct
responsibility for the administration of this Agreement and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Responsible Officer, such an officer whose name and specimen signature appears
on a list of corporate trust officers furnished to the Servicer by the Trustee
and the Bond Administrator, as such list may from time to time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Revised Rate": With respect to the Mortgage Loans that have an
Anticipated Repayment Date and any related Companion Loan, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for each applicable Mortgage Loan and Companion Loan, as calculated and as set
forth in the related Mortgage Loan or Companion Loan, which in any event does
not exceed 2% of the Mortgage Rate.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class X, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates issued as such on the Closing Date.
"S&P": Standard & Poor's Ratings Services, or its successor in
interest.
"Scheduled Final Distribution Date": As to the Class X
Certificates, the Distribution Date in January, 2024; as to Class A-1
Certificates, the Distribution Date in September, 2008; as to the Class A-2 and
Class B Certificates, the Distribution Date occurring in April, 2010; as to the
Class D, Class E and Class F Certificates, the Distribution Date occurring in
June, 2010; as to the Class G, Class H, Class K and Class L Certificates, the
Distribution Date occurring in July, 2010; as to the Class M Certificates, the
Distribution Date occurring in August, 2010; as to the Class N Certificates, the
Distribution Date occurring in May, 2016; and as to the Class O Certificates,
the Distribution Date occurring in January, 2024.
"Securities Legend": With respect to each Residual Certificate or
any Individual Certificate, the legend set forth in, and substantially in the
form of, Exhibit G hereto.
"Servicer": Orix Real Estate Capital Markets, LLC, a Delaware
limited liability company, or any successor Servicer appointed as herein
provided.
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Prepayment Interest Shortfall": With respect to any
Distribution Date, an amount equal to the Net Prepayment Interest Shortfall;
provided, however, that the aggregate amount of the Servicer Prepayment Interest
Shortfall with respect to any Interest Accrual Period shall not exceed the
aggregate amount of the Master Servicing Fee attributable to the Mortgage Loans
and the investment income accruing on the related Principal Prepayment with
respect to such Interest Accrual Period.
"Servicer Remittance Date": With respect to any Distribution
Date, the Business Day preceding such Distribution Date.
"Servicer's Appraisal Estimate": As defined in the definition of
Appraisal Reduction Amount.
"Servicing Compensation": With respect to any Collection Period,
the related Servicing Fee, Net Prepayment Interest Excess, if any, and any other
fees, charges or other amounts payable to the Servicer under this Agreement for
such period.
"Servicing Fee": With respect to each Mortgage Loan or Companion
Loan and for any Distribution Date, an amount per Interest Accrual Period equal
to the product of (i) one-twelfth of the sum of the respective Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan (or the unpaid
principal balance of such Companion Loan) as of the Due Date in the immediately
preceding Collection Period (without giving effect to payments of principal on
such Mortgage Loan or Companion Loan on such Due Date). In the case of the
Mortgage Loans that are also Loan REMIC Loans, the Servicing Fee shall be paid
on the related Loan REMIC Balance.
"Servicing Fee Rate": With respect to each Mortgage Loan or
Companion Loan, the sum of the Master Servicing Fee Rate and the related Primary
Servicing Fee Rate, if any.
"Servicing Officer": Any officer or employee of the Servicer or
the Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans, Companion Loans or this
Agreement and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's or employee's knowledge
of and familiarity with the particular subject, and, in the case of any
certification required to be signed by a Servicing Officer, such an officer or
employee whose name and specimen signature appears on a list of servicing
officers furnished to the Trustee and the Bond Administrator by the Servicer or
the Special Servicer, as applicable, as such list may from time to time be
amended.
"Servicing Standard": With respect to the Servicer or Special
Servicer shall mean the servicing of the Mortgage Loans and Companion Loans by
the Servicer or Special Servicer solely in the best interests of and for the
benefit of all of the Certificateholders and in the case of each Loan Pair, in
the best interests of and for the benefit of all of the Certificateholders and
the related Companion Holder, as a collective whole (as determined by the
Servicer or Special Servicer, as the case may be, in its reasonable judgment)
and in accordance with applicable law, the specific terms of the respective
Mortgage Loans and Companion Loans and, in the case of each Loan Pair, the
related Co-Lender Agreement, and this Agreement and to the extent not
inconsistent with the foregoing, in the same manner in which, and with the same
care, skill, prudence and diligence with which, it (i) services and administers
similar mortgage loans (including, in the case of the Special Servicer, REO
Loans) for other third-party portfolios or (ii) administers mortgage loans
(including, in the case of the Special Servicer, REO Loans) for its own account,
whichever standard is higher, but in any case without regard to:
(a) any known relationship that the Servicer, the Special
Servicer, any subservicer or any Affiliate of the
Servicer, the Special Servicer or any subservicer may have
with any Borrower or any other parties to this Agreement,
including any lending relationship with or equity interest
in such Borrower;
(b) the ownership of any Certificate or any Companion Loan by
the Servicer, the Special Servicer or any Affiliate of the
Servicer or Special Servicer, as applicable;
(c) the Servicer's obligation to make Advances or the Special
Servicer's right to make Property Advances or the
Servicer's or the Special Servicer's obligation to incur
servicing expenses with respect to the Mortgage Loans or
any Companion Loans;
(d) the Servicer's, the Special Servicer's or any
subservicer's right to receive compensation for its
services hereunder or with respect to any particular
transaction;
(e) the ownership, or servicing or management for others, by
the Servicer, the Special Servicer or any sub-servicer, of
any other mortgage loans or properties; or
(f) any repurchase or indemnity obligation on the part of any
Mortgage Loan Seller.
"Servicing Transfer Event": An event specified in the definition
of Specially Serviced Loan.
"Similar Law": As defined in Section 5.02(k) hereof.
"Small Loan Appraisal Estimate": With respect to any Mortgage
Loan or Loan Pair having a principal balance of less than $2,000,000, the
Special Servicer's good faith estimate of the value of such Mortgage Loan or
Loan Pair, as certified to the Servicer by the Special Servicer.
"Special Servicer": ORIX Real Estate Capital Markets, LLC, a
Delaware limited liability company, or its successor in interest, or any
successor Special Servicer appointed as provided in Section 3.25. In the event
that the Servicer is also the Special Servicer hereunder, and the Servicer is
terminated or resigns as the Servicer hereunder, the Servicer shall be
terminated as the Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section
7.01(b).
"Special Servicing Compensation": With respect to any Mortgage
Loan or Companion Loan, any of the Special Servicing Fee, Workout Fee,
Liquidation Fee and any other fees, charges or other amounts which shall be due
to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Loan (including either a Mortgage Loan and/or a Companion Loan) and any
Distribution Date, an amount per Special Servicing Period equal to the product
of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the Stated
Principal Balance of such Specially Serviced Loan (or in the case of a Companion
Loan, the unpaid principal balance thereof) as of the Due Date (without giving
effect to all payments of principal on such Specially Serviced Loan on such Due
Date) in the Collection Period prior to such Distribution Date.
"Special Servicing Fee Rate": A rate equal to 0.25% per annum.
"Special Servicing Period": The period during which a Mortgage
Loan or Companion Loan is a Specially Serviced Loan.
"Specially Serviced Loan": Subject to Section 3.26, any Mortgage
Loan or Loan Pair with respect to which:
(a) the related Borrower has not made three consecutive
Monthly Payments (and has not cured at least one such
delinquency by the next due date under the related
Mortgage Loan or Loan Pair);
(b) the Servicer or the Trustee has made four consecutive P&I
Advances (regardless of whether such P&I Advances have
been reimbursed);
(c) the related Borrower has expressed to the Servicer a
hardship that will cause an inability to pay the Mortgage
Loan or Companion Loan in accordance with its terms and,
therefore, in the reasonable judgment of the Servicer, the
Borrower is at imminent risk of default of the terms of
the Mortgage Loan or Loan Pair;
(d) the Servicer has received notice that the related Borrower
has become the subject of any bankruptcy, insolvency or
similar proceeding, admitted in writing the inability to
pay its debts as they come due or made an assignment for
the benefit of creditors;
(e) the Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged
Property securing the Mortgage Loan or Loan Pair;
(f) a default (other than a failure by the related Borrower to
pay principal or interest) which in the judgment of the
Servicer materially and adversely affects the interests of
the Certificateholders (or in the case of a Loan Pair, the
interests of the related Companion Holder) has occurred
and remained unremedied for the applicable grace period
specified in the Mortgage Loan (or, if no grace period is
specified, 60 days); provided, that so long as no monetary
default exists and is continuing with respect to the
Crowne Plaza Loan Pair, a restructuring by the guarantor
under the Crowne Plaza Loan Pair or such guarantor's
bankruptcy, insolvency or similar proceeding, admission in
writing of its inability to pay its debts as they come due
or assignment for the benefit of its creditors, will not
in and of itself constitute a default for purposes of this
clause; provided, further, that a default requiring a
Property Advance will be deemed to materially and
adversely affect the interests of Certificateholders (and
in the case of a Loan Pair, the interests of the related
Companion Holder); or
(g) except as is otherwise provided in Section 3.26(g), the
related Borrower has failed to make a Balloon Payment on
such Mortgage Loan or Loan Pair more than 30 days after
such payment was due;
provided, however, that a Mortgage Loan or Loan Pair will cease to be a
Specially Serviced Loan (each, a "Corrected Mortgage Loan") (i) with respect to
the circumstances described in clauses (a), (b) and (g) above, when the related
Borrower thereunder has brought the Mortgage Loan or Loan Pair current and
thereafter made three consecutive full and timely monthly payments, including
pursuant to any workout of the Mortgage Loan or Loan Pair, (ii) with respect to
the circumstances described in clause (c), (d) and (e) above, when such
circumstances cease to exist in the good faith judgment of the Special Servicer,
and (iii) with respect to the circumstances described in clause (f) above, when
such default is cured or other event is rendered, in each case, if at that time
no circumstance exists (as described above) that would cause the Mortgage Loan
or Loan Pair to continue to be characterized as a Specially Serviced Loan;
provided, further, that with respect to any Loan Pair, so long as either loan in
such Loan Pair constitutes a Specially Serviced Loan, both loans in such Loan
Pair shall constitute Specially Serviced Loans.
"Startup Day": The day designated as such pursuant to Section
2.06(a) hereof. The Startup Day of each Loan REMIC shall be the date specified
in the related Loan REMIC Declaration.
"Stated Principal Balance": With respect to any Mortgage Loan, on
any date of determination, the principal balance as of the Cut-off Date of such
Mortgage Loan (or in the case of a Replacement Mortgage Loan as of the related
date of substitution), as reduced on each Distribution Date (to not less than
zero) by (i) all payments (or Advances in lieu thereof) of, and all other
collections allocated as provided in Section 1.02 to, principal of or with
respect to such Mortgage Loan that are distributed to Certificateholders on such
Distribution Date or applied to any other payments required under this Agreement
on or prior to such date of determination, and (ii) any principal forgiven by
the Special Servicer and other principal losses realized in respect of such
Mortgage Loan during the related Collection Period. In the case of the
Fairgrounds Square Loan and the Towne Square Apartments Loan, the Stated
Principal Balance thereof shall equal the Loan REMIC Balance of the related Loan
REMIC Regular Interest. The Stated Principal Balance of any Mortgage Loan with
respect to which the Servicer or Special Servicer has made a Final Recovery
Determination is zero.
"Substitution Shortfall Amount": In connection with the
substitution of one or more Replacement Mortgage Loans for one or more Removed
Mortgage Loans, the amount, if any, by which the Repurchase Price or aggregate
Repurchase Price, as the case may be, for such Removed Mortgage Loan(s) exceeds
the initial Stated Principal Balance or aggregate Stated Principal Balance, as
the case may be, of such Replacement Mortgage Loan(s).
"Tax Returns": The federal income tax returns on IRS Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each of the Upper-Tier REMIC, the Lower-Tier REMIC and the Loan REMICs
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the IRS or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws in respect of the
Trust Fund, any of its assets, any Certificate, Lower-Tier Interest, Loan REMIC
Interest or Trust REMIC.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund
is terminated pursuant to Section 9.01.
"Towne Square Apartments Loan": The Mortgage Loan identified as
Loan No. 51 on the Mortgage Loan Schedule.
"Towne Square Apartments REMIC": The REMIC constituted by the
Towne Square Apartments Loan (exclusive of Default Interest), collections
thereon, any REO Property acquired in respect thereof and amounts held from time
to time in the Collection Account and the Lower-Tier Distribution Account in
respect thereof, with respect to which the Bond Administrator, on behalf of the
Trustee, will make an election to be treated as a "real estate mortgage
investment conduit" within the meaning of the REMIC Provisions.
"Towne Square Apartments REMIC Declaration": That certain REMIC
Declaration dated as of July 31, 2000 with respect to the Towne Square
Apartments Loan.
"Towne Square Apartments REMIC Regular Interest": The
uncertificated "regular interest," within the meaning of Code Section
860G(a)(1), in the Towne Square Apartments REMIC issued pursuant to the Towne
Square Apartments REMIC Declaration.
"Towne Square Apartments REMIC Residual Interest": The
uncertificated "residual interest," within the meaning of Code Section
860G(a)(1), in the Towne Square Apartments REMIC issued pursuant to the Towne
Square Apartments REMIC Declaration.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the
extent of the Trust Fund's interest therein); (iv) all revenues received in
respect of any REO Property (to the extent of the Trust Fund's interest
therein); (v) the Servicer's, the Special Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any proceeds thereof (to the extent of
the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets are not assets of the
respective Borrowers or of the related Companion Holder), amounts on deposit in
the Collection Account attributable to the Mortgage Loans and the Loan REMIC
Interests as identified on the Trust Ledger, the Distribution Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Excess
Interest Distribution Account, the Excess Liquidation Proceeds Account, the
Interest Reserve Account, the Default Interest Distribution Account, any REO
Account (to the extent of the Trust Fund's interest therein), including any
reinvestment income, as applicable; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase Agreements, including the Wilton Prepayment Premium
Obligation; (xi) each Loan REMIC Regular Interest and Loan REMIC Residual
Interest; and (xii) the proceeds of the foregoing (other than any interest
earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Borrower).
"Trust Ledger": Amounts deposited in the Collection Account
attributable to the Mortgage Loans and the Loan REMIC Interests, which are
maintained pursuant to Section 3.05(a) and held on behalf of the Trustee on
behalf of the Certificateholders.
"Trust REMICs": The Lower-Tier REMIC, the Upper-Tier REMIC and
the Loan REMICs.
"Trustee": Wells Fargo Bank Minnesota, N.A., a national banking
association, in its capacity as Trustee, or its successor in interest, or any
successor Trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the immediately preceding
Collection Period (without giving effect to payments of principal on such
Mortgage Loan on such Due Date). In the case of the Loan REMIC Loans, the
Trustee Fee shall be paid in respect of the related Loan REMIC Regular
Interests.
"Trustee Fee Rate": A rate equal to 0.0027% per annum.
"Uncertificated Accrued Interest": With respect to any Lower-Tier
Regular Interest, for any Distribution Date, one month's interest (calculated on
the basis of a 360-day year consisting of twelve 30-day months at the Lower-Tier
Regular Interest's Pass-Through Rate for such Distribution Date, accrued on the
Lower-Tier Balance of such Lower-Tier Regular Interest immediately prior to such
Distribution Date. The Uncertificated Accrued Interest in respect of any
Lower-Tier Regular Interest for any Distribution Date shall be deemed to accrue
during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any
Lower-Tier Regular Interest for any Distribution Date, the Uncertificated
Accrued Interest in respect of such Lower-Tier Regular Interest for such
Distribution Date, reduced (but not to less than zero) by the portion, if any,
of the Net Prepayment Interest Shortfall, if any, for such Distribution Date
allocated to such Lower-Tier Regular Interest, which shall be allocated in the
same manner as such Net Prepayment Interest Shortfall is allocated among the
related Classes of Principal Balance Certificates.
"Underwriters": DBS, J.P. Morgan Securities Inc. and Chase
Securities Inc.
"Unscheduled Payments": With respect to a Mortgage Loan or a
Companion Loan and a Collection Period, all Net Liquidation Proceeds and Net
Insurance Proceeds payable under such Mortgage Loan or Companion Loan, the
Repurchase Price of any Mortgage Loan that is repurchased or purchased pursuant
to Sections 2.03(d), 2.03(e), 3.18 or 9.01, the Substitution Shortfall Amount
with respect to any substitution pursuant to Section 2.03(g) and any other
payments under or with respect to such Mortgage Loan or Companion Loan not
scheduled to be made, including (i) Principal Prepayments received by the
Servicer, but excluding Prepayment Premiums, during such Collection Period and
(ii) if applicable, the Repurchase Price paid for the Wilton Office Plaza Loan,
other than the Yield Maintenance Premium paid pursuant to the Wilton Prepayment
Premium Obligation.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO
Property, as the case may be, conducted subsequent to any appraisal performed on
or prior to the Cut-off Date and in accordance with Appraisal Institute
standards, the costs of which shall be paid as a Property Advance by the
Servicer or the Special Servicer, as applicable. Updated Appraisals shall be
conducted by an MAI appraiser selected by the Special Servicer.
"Updated Valuation": With respect to a Mortgage Loan or Companion
Loan having a principal balance of $2,000,000 or higher, an Updated Appraisal.
With respect to a Mortgage Loan having a principal balance of less than
$2,000,000, an updated Small Loan Appraisal Estimate.
"Upper-Tier Distribution Account": The trust account or accounts
(i) created and maintained as a separate trust account or accounts by the Bond
Administrator pursuant to Section 3.05(d), which shall be entitled "Wells Fargo
Bank Minnesota, N.A., as Trustee, in trust for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates, Upper-Tier Distribution Account" and which must be an Eligible
Account or (ii) maintained as a subaccount of the Distribution Account pursuant
to Section 3.05(d).
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations), or other entity created or organized in or under the laws of the
United States, any state or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which have elected to be treated as U.S.
Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificateholder or Class of
Certificateholders. At all times during the term of this Agreement, the
percentage of Voting Rights assigned to each Class shall be: (a) 98% to be
allocated among the Certificateholders of the respective Classes of Regular
Certificates (other than the Class X Certificates) in proportion to the
Certificate Balances of their Certificates, (b) 2% to be allocated among the
Certificateholders of the Class X Certificates, and (c) 0%, in the case of the
Class Q-1, Class Q-2, Class R and Class LR Certificates. Voting Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests in such Class
evidenced by their respective Certificates.
"Watch List": A report substantially containing the content
described in Exhibit O-6 attached hereto, as of the close of business on the
Determination Date immediately preceding the respective Distribution Date,
setting forth, among other things, any Mortgage Loan or Loan Pair that is in
jeopardy of becoming a Specially Serviced Loan.
"Weighted Average Net Mortgage Pass-Through Rate": With respect
to any Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum for all Mortgage Loans of the
products of (i) the Net Mortgage Pass-Through Rate for each such Mortgage Loan
as of the immediately preceding Distribution Date and (ii) the Stated Principal
Balance of each such Mortgage Loan and the denominator of which is the sum of
the Stated Principal Balances of all such Mortgage Loans, as of the immediately
preceding Distribution Date; provided, that in the case of the Fairgrounds
Square Loan and the Towne Square Apartments Loan, "Mortgage Loan" shall refer to
the related Loan REMIC Regular Interest.
"Wilton Maturity Date": As defined in Section 2.03(d).
"Wilton Office Plaza Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. 41.
"Wilton Prepayment Premium Obligation": In connection with the
repurchase by GACC of the Wilton Office Plaza Loan pursuant to Section 2.03(d)
of this Agreement, the obligation of GACC to pay the Yield Maintenance Premium
specified in Section 2.03(d). The proceeds of the Wilton Prepayment Premium
Obligation shall not be an asset of any of the Trust REMICs.
"Withheld Amount": With respect to (a) each Distribution Date
occurring in (i) January of each calendar year that is not a leap year and (ii)
February of each calendar year, an amount equal to one day's interest at the
Mortgage Rate (less the Servicing Fee Rate and the Trustee Fee Rate) as of the
Due Date on the respective Stated Principal Balance of each Mortgage Loan as of
the Due Date in the month preceding the month in which such Distribution Date
occurs, to the extent that a Monthly Payment or a P&I Advance is made in respect
thereof. In the case of the Loan REMIC Loans, the Withheld Amount shall be
determined in respect of the related Loan REMIC Regular Interest.
"Workout Fee": An amount equal to 1.0% of each collection of
interest and principal (including scheduled payments, prepayments, Balloon
Payments and payments at maturity) received on a Specially Serviced Loan that
becomes a Corrected Mortgage Loan for so long as it remains a Corrected Mortgage
Loan, pursuant to Section 3.12(c).
"Yield Maintenance Premium": As defined in Section 2.03(d).
Section 1.02 Certain Calculations. Unless otherwise specified
herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage
Loans and Companion Loans (other than the Actual/360 Mortgage Loans and
Companion Loans) and of Advances in respect thereof 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 Mortgage Loans and
Companion Loans and of Advances provided in respect thereof provided for herein
shall be made as set forth in such Mortgage Loans and Companion Loans with
respect to the calculation of the related Mortgage Rate. All Servicing Fees and
Trustee Fee calculated as a percentage will accrue on the basis of a 360-day
year consisting of twelve 30-day months.
(b) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the Servicer or the Bond
Administrator; provided, however, that for purposes of calculating distributions
on the Certificates, Principal Prepayments with respect to any Mortgage Loan are
deemed to be received on the date they are applied in accordance with Section
3.01(b) to reduce the outstanding principal balance of such Mortgage Loan on
which interest accrues.
(c) Any amounts received in respect of a Mortgage Loan or
Companion Loan as to which a default has occurred and is continuing in excess of
Monthly Payments shall be applied to Default Interest and other amounts due on
such Mortgage Loan or Companion Loan prior to the application to late fees.
(d) Allocations of payments between a Mortgage Loan and the
related Companion Loan in a Loan Pair shall be made in accordance with the
related Co-Lender Agreement.
Section 1.03 Certain Constructions. For purposes of the
definition of "Special Servicing Fee", Section 3.19, Section 3.12, Section 3.25,
Section 3.30 and Section 4.06(d), references to the most or next most
subordinate Class of Certificates outstanding at any time shall mean the most or
next most subordinate Class of Certificates then outstanding as among the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class O Certificates.
For such purposes, the Class A-1, Class A-2 and Class X Certificates
collectively shall be considered to be one Class. For purposes of this
Agreement, each Class of Certificates other than the Class Q-1, Class Q-2, Class
LR and Class R Certificates shall be deemed to be outstanding only to the extent
its respective Certificate Balance has not been reduced to zero. For purposes of
this Agreement, the Class Q-1 Certificates but only with respect to their right
to receive Default Interest allocable to the Mortgage Loans, shall be
outstanding so long as the Trust Fund has not been terminated pursuant to
Section 9.01 or any other Class of Certificates remains outstanding. For
purposes of this Agreement, the Class Q-2 Certificates, but only with respect to
their right to receive Excess Interest allocable to the Mortgage Loans, shall be
outstanding so long as the Trust Fund has not been terminated pursuant to
Section 9.01 or any other Class of Certificates remains outstanding. For
purposes of this Agreement, the Class R and Class LR Certificates shall be
outstanding so long as the Trust Fund has not been terminated pursuant to
Section 9.01 or any other Class of Certificates remains outstanding. For
purposes of this Agreement, the Class X Certificates (and each Class X
Component) shall be deemed to be outstanding until their Notional Balance (or
portion thereof allocable to such Class X Component) has been reduced to zero.
Section 1.04 Certain Calculations with respect to Loan Pairs and
Companion Loans. All Appraisal Reduction Amounts, Liquidation Expenses, Property
Protection Expenses and amounts payable or reimbursable in respect of a Loan
Pair, shall be allocated in accordance with the related Co-Lender Agreement. If
an expense under this Agreement relates primarily to the administration of the
Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC, a Loan REMIC or the
Grantor Trust or to any determination respecting the amount, payment or
avoidance of any tax under the REMIC Provisions, then the foregoing sentence
shall not apply and such expense shall not be allocated to any Companion Loan.
If or to the extent that an expense (including without limitation expenses
pursuant to Section 3.01(d), 3.07(c), 3.10(i), 3.11, 3.17, 3.18(h), 3.25(c),
3.25(d), 7.04 or 10.07 hereof or any indemnity payment) relates solely to a
specific Loan Pair or is incurred at the request of the related Companion Holder
(or an Operating Advisor acting on its behalf), then such expense shall be borne
solely by the related Loan Pair and shall not be allocated to any unrelated
Companion Loan.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans and Loan REMIC
Interests; Assignment of Mortgage Loan Purchase Agreements. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the Trust Fund and sell, transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent herein provided) all the right, title and interest of the Depositor
in and to the Mortgage Loans, including all rights to payment in respect
thereof, except as set forth below, and any security interest thereunder
(whether in real or personal property and whether tangible or intangible) in
favor of the Depositor, and all Reserve Accounts, Lock-Box Accounts, Cash
Collateral Accounts and all other assets to the extent included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date. In connection with such
transfer and assignment, the Depositor shall make a cash deposit to the
Collection Account in an amount equal to the Cash Deposit. The Depositor,
concurrently with the execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase Agreements to the extent related to
any Mortgage Loan. The Depositor shall cause the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts relating to the Mortgage Loans to be
transferred to and held in the name of the Servicer on behalf of the Trustee as
successor to the Mortgage Loan Sellers.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, the Custodian (on behalf of the
Trustee and, with respect to each Loan Pair and original Loan Documents other
than the Note evidencing such Companion Loan, the related Companion Holder),
with copies to the Servicer and the Special Servicer, the following documents or
instruments with respect to each Mortgage Loan so assigned (provided, however,
the documents specified in item (ix) shall be delivered only to the Servicer):
(i) the original Note, endorsed by the most recent endorsee prior
to the Trustee or, if none, by the Originator, without recourse, either
in blank or to the order of the Trustee in the following form: "Pay to
the order of Wells Fargo Bank Minnesota, N.A., as Trustee for the
registered holders of COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any,
in each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the Originator, either in blank or in favor of
the Trustee (in such capacity);
(iv) (A) an original or copy of any related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the Originator of
the related Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any; and (B) an original assignment of any
related security agreement (if such item is a document separate from the
related Mortgage) executed by the most recent assignee of record thereof
prior to the Trustee or, if none, by the Originator, either in blank or
in favor of the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(v) (A) stamped or certified copies of any UCC financing
statements and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security interest held by
the Originator of the Mortgage Loan (and each assignee of record prior
to the Trustee) in and to the personalty of the Borrower at the
Mortgaged Property (in each case with evidence of filing thereon) and
which were in the possession of the related Mortgage Loan Seller (or its
agent) at the time the Mortgage Files were delivered to the Custodian,
together with original UCC-2 or UCC-3 financing statements showing a
complete chain of assignment from the secured party named in such UCC-1
financing statement to the Trustee and (B) if any such security interest
is perfected and the earlier UCC financing statements and continuation
statements were in the possession of the related Mortgage Loan Seller, a
UCC financing statement executed by the most recent assignee of record
prior to the Trustee or, if none, by the Originator, evidencing the
transfer of such security interest, either in blank or in favor of the
Trustee;
(vi) the original or a copy of the Loan Agreement relating to
such Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance
policy issued as of the date of the origination of the Mortgage Loan,
together with all endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, or a
"marked up" commitment to insure;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from the
Originator of the Mortgage Loan to the most recent assignee of record
thereof prior to the Trustee, if any, in each case with evidence of
recording thereon; and (B) an original assignment of any related
Assignment of Leases, Rents and Profits (a "Reassignment of Assignment
of Leases, Rents and Profits") (if such item is a document separate from
the Mortgage), in recordable form, executed by the most recent assignee
of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(ix) copies of the original Environmental Reports of the
Mortgaged Properties made in connection with origination of the Mortgage
Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts
and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral
Account Agreement is separate from the Mortgage or Loan Agreement, a
copy thereof; with respect to the Reserve Accounts, 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 related
Mortgage Loan Seller's security interest in the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts and all funds contained
therein (and UCC-3 financing statements assigning such security interest
to the Trustee on behalf of the Certificateholders);
(xiv) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where the terms or
provisions of the Mortgage, the Note or any related security document
have been modified or the Mortgage Loan has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan together with (A) if applicable,
the original or copies of any intervening assignments of such guaranty
showing a complete chain of assignment from the Originator of the
Mortgage Loan to the most recent assignee thereof prior to the Trustee,
if any, and (B) an original assignment of such guaranty executed by the
most recent assignee thereof prior to the Trustee or, if none, by the
Originator;
(xvi) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the related
Borrower if the Mortgage, Note or other document or instrument referred
to above was signed on behalf of the Borrower pursuant to such power of
attorney;
(xvii) any other material written agreements related to the
Mortgage Loan;
(xviii) with respect to any Loan Pair, all of the above documents
with respect to the related Companion Loan and the related Co-Lender
Agreement or similar agreements with respect to such Loan Pair; provided
that a copy of the Note, other than the original, shall be provided, and
no assignments shall be provided; and
(xix) with respect to the transfer described in Section 2.01(b),
the originals or copies of the Loan REMIC Declarations.
On or prior to the Closing Date, each Mortgage Loan Seller will
retain a third party vendor reasonably satisfactory to the Directing
Certificateholder to complete the assignment and recordation of the related Loan
Documents. On or promptly following the Closing Date, each Mortgage Loan Seller
will cause such third party vendor, to the extent possession of recorded copies
of each Mortgage and the documents described in Sections 2.01(iv), (v), (viii),
(xii), (xiii) and (xiv) have been delivered to it, at the expense of the
Mortgage Loan Seller, (1) to prepare and record (a) each Assignment of Mortgage
referred to in Section 2.01(iii) which has not yet been submitted for recording
and (b) each Reassignment of Assignment of Leases, Rents and Profits referred to
in Section 2.01(viii) (if not otherwise included in the related Assignment of
Mortgage) which has not yet been submitted for recordation; and (2) to prepare
and file each UCC financing statement referred to in Section 2.01(v) or (xiii)
which has not yet been submitted for filing. Each Mortgage Loan Seller will
direct the related third party vendor to promptly prepare and submit (and in no
event later than 30 Business Days following the receipt of the related documents
in the case of clause 1(a) above and 60 days following the receipt of the
applicable documents in the case of clauses 1(b) and 2 above) for recording or
filing, as the case may be, in the appropriate public recording office, each
such document. In the event that any such document is lost or returned
unrecorded because of a defect therein, the related Mortgage Loan Seller, at the
expense of such Mortgage Loan Seller (as set forth in the related Mortgage Loan
Purchase Agreement), will promptly prepare a substitute document for signature
by the Depositor or itself, as applicable, and thereafter the related Mortgage
Loan Seller will cause each such document to be duly recorded. Each Mortgage
Loan Sellers will, promptly upon receipt of the original recorded copy (and in
no event later than five Business Days following such receipt) deliver such
original to the Custodian (in the case of each UCC, with evidence of filing
thereon). Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains the original
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, after any has been recorded, the obligations
hereunder of the Depositor shall be deemed to have been satisfied upon delivery
to the Custodian of a copy of such Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable,
certified by the public recording office to be a true and complete copy of the
recorded original thereof. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee or to file any UCC-3 in
those jurisdictions where, in the written opinion of local counsel (which
opinion shall not be an expense of the Trust Fund or of any Companion Holder)
acceptable to the Depositor and the Trustee, such recordation and/or filing is
not required to protect the Trustee's interest in the related Mortgage Loans
against sale, further assignment, satisfaction or discharge by the Mortgage Loan
Sellers, the Servicer, the Special Servicer, any sub-servicer or the Depositor.
If a Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in Section 2.01(vii) solely because
such policy has not yet been issued, the delivery requirements of this Section
2.01 will be deemed to be satisfied as to such missing item, and such missing
item will be deemed to have been included in the related Mortgage File. Copies
of recorded or filed Assignments, Reassignments, and UCC's shall be held by the
Custodian.
All original documents relating to the Mortgage Loans which are
not delivered to the Custodian are and shall be held by the Depositor, the
Trustee or the Servicer (or a subservicer on its behalf), as the case may be, in
trust for the benefit of the Certificateholders (and, with respect to each Loan
Pair and other than the related Note evidencing such Companion Loan, the related
Companion Holder). In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
(b) If the Depositor cannot deliver any original or certified
recorded document described in Section 2.01 on the Closing Date, the Depositor
shall use its best efforts, promptly upon receipt thereof and in any case not
later than 45 days from the Closing Date (except as described below with respect
to the items described in Section 2.01(ii), (v), (viii)(A), (xiv) and (xvi) and
the UCC's referred to in Section 2.01(xiii)) to deliver such original or
certified recorded documents to the Custodian (unless the Depositor is delayed
in making such delivery by reason of the fact that such documents shall not have
been returned by the appropriate recording office in which case it shall notify
the Custodian and the Trustee in writing of such delay).
If the Depositor cannot deliver, or cause to be delivered, as to
any Mortgage Loan, the original or a copy of any of the documents and/or
instruments referred to in Section 2.01(ii), Section 2.01(v), Section
2.01(viii)(A), Section 2.01(xiv) and Section 2.01(xvi) and the UCC's referred to
in Section 2.01(xiii), with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of Section 2.01 shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that a copy of such document or instrument
(without evidence of recording or filing thereon, but certified (which
certificate may relate to multiple documents and/or instruments) by the related
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording or filing, as the case may be) has been delivered to the
Custodian, and either the original of such missing document or instrument, or a
copy thereof, with evidence of recording or filing, as the case may be, thereon,
is delivered to the Custodian within 90 days of the Closing Date (or within such
longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the related Mortgage Loan
Seller has provided the Trustee with evidence of such recording or filing, as
the case may be, or has certified to the Trustee as to the occurrence of such
recording or filing, as the case may be, and is, as certified to the Trustee no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy).
(c) The Depositor, concurrently with the execution and
delivery hereof, does hereby sell, transfer, assign, set over and otherwise
convey to the Trustee without recourse (except to the extent herein provided)
all the right, title and interest of the Depositor in, to and under the Loan
REMIC Interests and the Loan REMIC Declarations. The Bond Administrator shall
administer each of the Loan REMICs in accordance with Section 4.04(b) hereof.
Section 2.02 Acceptance by Custodian and the Trustee. By its
execution and delivery of this Agreement, the Trustee acknowledges the
assignment to it of the Mortgage Loans in good faith without notice of adverse
claims and declares that the Custodian holds and will hold such documents and
all others delivered to it constituting the Mortgage File (to the extent the
documents constituting the Mortgage File are actually delivered to the
Custodian) for any Mortgage Loan assigned to the Trustee hereunder in trust,
upon the conditions herein set forth, for the use and benefit of all present and
future Certificateholders and any related present or future Companion Holder.
With the exception of any Notes listed by the Custodian on an exception report
and delivered to the Depositor on the Closing Date, the Custodian hereby
acknowledges the receipt of the Notes. The Custodian agrees to review each
Mortgage File within 90 days after the execution and delivery of this Agreement,
to ascertain that all documents (other than documents referred to in clause (ix)
of Section 2.01 which shall be delivered to the Servicer and the documents
referred to in clauses (iii), (v)(B) and (viii)(B) of Section 2.01 which shall
be delivered for recording by the Mortgage Loan Sellers as provided herein)
referred to in Section 2.01 above (in the case of the documents referred to in
Section 2.01(iv), (v), (vi), (vii) (in the case of any endorsement thereto),
(viii), (ix) and (x) through (xvii), as identified to it in writing by the
related Mortgage Loan Seller) and any original recorded documents referred to in
the first sentence of this Section included in the delivery of a Mortgage File
have been received, have been executed, appear to be what they purport to be,
purport to be recorded or filed (as applicable) and have not been torn in any
materially adverse manner or mutilated or otherwise defaced, and that such
documents relate to the Mortgage Loans identified in the Mortgage Loan Schedule
or the Companion Loans identified in the Companion Loan Schedule. In so doing,
the Custodian may rely on the purported due execution and genuineness of any
such document and on the purported genuineness of any signature thereon. If at
the conclusion of such review any document or documents constituting a part of a
Mortgage File have not been executed or received, have not been recorded or
filed (if required), are unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule or the Companion Loans identified in the Companion Loan
Schedule, appear not to be what they purport to be or have been torn in any
materially adverse manner or mutilated or otherwise defaced, the Custodian shall
promptly so notify the Bond Administrator, which in turn shall forward such
notice to the Trustee, the Depositor, the Servicer, the Special Servicer, the
related Companion Holder, if any, the Directing Certificateholder and the
related Mortgage Loan Seller by providing a written report, setting forth for
each affected Mortgage Loan, with particularity, the nature of the defective or
missing document. The Depositor shall or shall cause the related Mortgage Loan
Seller to deliver an executed, recorded or undamaged document, as applicable,
or, if the failure to deliver such document in such form has a material adverse
effect on the security provided by the related Mortgaged Property or the ability
of the Trustee to timely enforce any rights or remedies in respect of such
Mortgaged Property, the Depositor shall cause the related Mortgage Loan Seller
to repurchase the related Mortgage Loan (and any related Cross-Collateralized
Loan) in the manner provided in Section 2.03. In addition to the rights of the
Trustee pursuant to Section 2.03, if the Depositor cannot deliver, or cause to
be delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in Section 2.01 hereof (and provide
evidence of recordation and/or assignment where applicable), the Servicer, at
the written direction of the Directing Certificateholder, may require a Mortgage
Loan Seller to establish with the Bond Administrator a cash reserve (or provide
a letter of credit) in the amount of 20% of the principal balance of such
Mortgage Loan for which any documents and/or instruments specified in clauses
(i) through (ix), inclusive, of Section 2.01 remain missing, uncorrected,
unrecorded or unassigned 18 months after the Closing Date. Amounts in such
reserve related to a particular Mortgage Loan, at the written direction of the
Servicer (a copy of which shall also be delivered by the Servicer to the
Trustee), shall either be released by the Bond Administrator to the appropriate
Mortgage Loan Seller, upon delivery of the documents and/or instruments
specified in the preceding sentence or upon payment of such Mortgage Loan in
full or if such Mortgage Loan is required to be repurchased as provided in
Section 2.03, such amounts shall be credited against the Repurchase Price for
such Mortgage Loan. Any such amounts transferred to the Bond Administrator may
be invested in Permitted Investments and all income and gain realized from
investment of such funds shall be for the benefit of the related Mortgage Loan
Seller. None of the Servicer, the Special Servicer, the Bond Administrator, the
Trustee or any Companion Holder shall be responsible for any loss, cost, damage
or expense to the Trust Fund resulting from any failure to receive any document
constituting a portion of a Mortgage File noted on such a report or for any
failure by the Depositor to use its best efforts to deliver any such document.
The Depositor shall deliver, contemporaneously with its execution
of this Agreement, and shall cause each Mortgage Loan Seller to deliver, a power
of attorney to each of the Servicer and Special Servicer, at the direction of
the Directing Certificateholder or its assignees, to take such other action as
is necessary to effect the delivery, assignment and/or recordation of any
documents and/or instruments relating to any Mortgage Loan which have not been
delivered, assigned or recorded at the time required for enforcement by the
Trust Fund. Pursuant to the related Mortgage Loan Purchase Agreement, each of
the Mortgage Loan Sellers will be required to effect (at the expense of the
applicable Mortgage Loan Seller) the assignment and recordation of its
respective Loan Documents until the assignment and recordation of all such Loan
Documents has been completed.
In reviewing any Mortgage File pursuant to the preceding
paragraph or Section 2.01, the Servicer shall have no responsibility to cause
the Custodian or Trustee to, and the Custodian or Trustee will have no
responsibility to, determine whether any document or opinion is legal, valid,
binding or enforceable, whether the text of any assignment or endorsement is in
proper or recordable form (except, if applicable, to determine if the Trustee is
the assignee or endorsee), whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction, whether a blanket
assignment is permitted in any applicable jurisdiction, or whether any Person
executing any document or rendering any opinion is authorized to do so or
whether any signature thereon is genuine.
On the Closing Date, the Depositor shall also deliver to the
Custodian a list of the Companion Loans and the related Companion Holders as set
forth on Schedule I attached hereto (the "Companion Loan Schedule"). Such
Companion Loan Schedule shall also include, with respect to each Companion Loan,
the information required to be included in the Mortgage Loan Schedule (as
specified in the definition thereof).
The Custodian shall hold that portion of the Trust Fund delivered
to the Custodian consisting of "instruments" (as such term is defined in Section
9-105(i) of the Uniform Commercial Code as in effect in Massachusetts on the
date hereof) in Massachusetts and, except as otherwise specifically provided in
this Agreement, shall not remove such instruments from Massachusetts, as
applicable, unless it receives an Opinion of Counsel (obtained and delivered at
the expense of the Person requesting the removal of such instruments from
Massachusetts) that in the event the transfer of the Mortgage Loans to the
Trustee is deemed not to be a sale, after such removal, the Trustee will possess
a first priority perfected security interest in such instruments.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans. (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;
(ii) The Depositor has taken all necessary action to authorize
the execution, delivery and performance of this Agreement by it, and has
the power and authority to execute, deliver and perform this Agreement
and all the transactions contemplated hereby, including, but not limited
to, the power and authority to sell, assign and transfer the Mortgage
Loans in accordance with this Agreement;
(iii) This Agreement has been duly and validly executed and
delivered by the Depositor and 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 in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provision of its certificate of incorporation or
bylaws, or any law or regulation to which the Depositor is subject, or
conflict with, result in a breach of or constitute a default under (or
an event which with notice or lapse of time or both would constitute a
default under) any of the terms, conditions or provisions of any
agreement or instrument to which the Depositor is a party or by which it
is bound, or any law, 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;
(v) The certificate of incorporation of the Depositor provides
that the Depositor is permitted to engage in only the following
activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge
and otherwise deal with the following: (I) "fully-modified
pass-through" certificates ("GNMA Certificates") issued and
guaranteed as to timely payment of principal and interest by the
Government National Mortgage Association ("GNMA"), a wholly-owned
corporate instrumentality of the United States within the
Department of Housing and Urban Development organized and
existing under Title III of the National Housing Act of 1934;
(II) Guaranteed Mortgage Pass-Through Certificates ("FNMA
Certificates") issued and guaranteed as to timely payment of
principal and interest by FNMA; (III) Mortgage Participation
Certificates ("FHLMC Certificates") issued and guaranteed as to
timely payment of interest and ultimate or full payment of
principal by FHLMC; (IV) any other participation certificates,
pass-through certificates or other obligations or interests
backed directly or indirectly by mortgage loans and issued or
guaranteed by GNMA, FNMA or FHLMC (collectively with the GNMA
Certificates, FNMA Certificates and FHLMC Certificates, the
"Agency Securities"); (V) mortgage-backed securities, which
securities need not be issued or guaranteed, in whole or in part,
by any governmental entity, issued by one or more private
entities (hereinafter referred to as "Private Securities"); (VI)
mortgage loans secured by first, second or more junior liens on
one-to-four family residential properties, multifamily properties
that are either rental apartment buildings or projects containing
five or more residential units or commercial properties,
regardless of whether insured or guaranteed in whole or in part
by any governmental entity, or participation interests or
stripped interests in such mortgage loans ("Mortgage Loans");
(VII) conditional sales contracts and installment sales or loan
agreements or participation interests therein secured by
manufactured housing ("Contract"); and (VIII) receivables of
third-parties or other financial assets of third-parties, either
fixed or revolving, that by their terms convert into cash within
a finite time period ("Other Assets");
(B) to loan its funds to any person under loan agreements
and other arrangements which are secured by Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other
Assets;
(C) to authorize, issue, sell and deliver bonds or other
evidences of indebtedness that are secured by Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other
Assets;
(D) to authorize, issue, sell and deliver certificates
evidencing beneficial ownership interests in pools of Agency
Securities, Private Securities, Mortgage Loans, Contracts and/or
Other Assets; and
(E) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware
that are incident to the foregoing and necessary or convenient to
accomplish the foregoing.
Capitalized terms defined in this clause (v) shall apply only to such clause;
(vi) There is no action, suit, proceeding or investigation
pending or threatened against the Depositor in any court or by or before
any other governmental agency or instrumentality which would materially
and adversely affect the ability of the Depositor to carry out its
obligations under this Agreement;
(vii) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental
agency or body, is required for the execution, delivery and performance
by the Depositor of or compliance by the Depositor with this Agreement,
or if required, such approval has been obtained prior to the Cut-off
Date; and
(viii) The Trustee, if not the owner of the related Mortgage
Loan, will have a valid and perfected security interest of first
priority in each of the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect
to each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the
Trustee, the Note and the Mortgage were not subject to an assignment or
pledge, and the Depositor had good title to, and was the sole owner of,
the Mortgage Loan and had full right to transfer and sell the Mortgage
Loan to the Trustee free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest;
(ii) The Depositor is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the legal,
valid and binding assignment of such Mortgage from the Depositor to the
Trustee, and any related Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding assignment from the
Depositor to the Trustee;
(iv) No claims have been made by the Depositor under the lender's
title insurance policy, and the Depositor has not done anything which
would impair the coverage of such lender's title insurance policy;
(v) All of the representations and warranties of the Mortgage
Loan Sellers contained in the Mortgage Loan Purchase Agreements are true
and correct as of the Cut-off Date; and
(vi) The information set forth with respect to such Mortgage Loan
on the Mortgage Loan Schedule is true and correct in all material
respects as of the dates respecting which such information is given, or
if no date is specified, as of the Closing Date.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Custodian until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders, the
Servicer and the Special Servicer.
(d) Upon the receipt of notice from either the Borrower under
the Wilton Office Plaza Loan or the Depositor or the Servicer that such Borrower
intends to defease the Wilton Office Plaza Loan on a date on or prior to the
second anniversary of the Startup Day of the Lower-Tier REMIC (the "Prepayment
Date"), GACC shall repurchase such Mortgage Loan on or prior to such Prepayment
Date at the Repurchase Price, plus a Yield Maintenance Premium (together the
"Wilton Repurchase Price").
As used in this subsection (d), "Yield Maintenance Premium" means
an amount equal to the sum of the present value as of the Prepayment Date of the
Calculated Payments from the Prepayment Date through the maturity date of the
Wilton Office Plaza Mortgage Loan (the "Wilton Maturity Date") determined by
discounting such payments at the Discount Rate. As used in this definition, the
term "Calculated Payments" shall mean the monthly payments of interest only
which would be due based on the principal amount of the Wilton Office Plaza Loan
on the Prepayment Date and assuming an interest rate per annum equal to the
difference (if such difference is greater than zero) between (y) the interest
rate borne by the Wilton Office Plaza Mortgage Loan and (z) the Yield
Maintenance Treasury Rate. As used in this definition, the term "Discount Rate"
shall mean the rate which, when compounded monthly, is equivalent to the Yield
Maintenance Treasury Rate, when compounded semi-annually. As used in this
definition, the term "Yield Maintenance Treasury Rate" shall mean the yield
calculated by the linear interpolation of the yields, as reported in the 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 Prepayment Date, of U.S. Treasury Constant Maturities with maturity dates
(one longer or one shorter) most nearly approximating the Wilton Maturity Date.
(e) Upon discovery by the Custodian, the Servicer, the Special
Servicer, the Trustee or the Bond Administrator of a breach of any
representation or warranty of a Mortgage Loan Seller in a Mortgage Loan Purchase
Agreement with respect to any Mortgage Loan, or that any document required to be
included in the Mortgage File is missing or does not conform to the requirements
of Section 2.01 (a "Defect"), such Person shall give prompt notice thereof to
such Mortgage Loan Seller, the Directing Certificateholder and any Companion
Holder and to the Custodian, the Servicer, the Special Servicer, the Trustee or
the Bond Administrator, as applicable, and the Depositor shall cause such
Mortgage Loan Seller, to the extent such Mortgage Loan Seller is obligated to
cure or repurchase the related Mortgage Loan under the terms of the related
Mortgage Loan Purchase Agreement, to either cure such Defect or breach or
repurchase said Mortgage Loan (and any related Cross-Collateralized Loan) at the
Repurchase Price within 90 days of the receipt of notice of the Defect or breach
as provided in such Mortgage Loan Purchase Agreement; provided, however, that in
the event that such breach or Defect is capable of being cured, as determined by
the Servicer or the Special Servicer, as applicable, but not within such 90-day
period and the applicable Mortgage Loan Seller has commenced, and is diligently
proceeding with, the cure of such breach or Defect, such Mortgage Loan Seller
will enter a Resolution Extension Period; provided, further, that (A) upon
entering such Resolution Extension Period, the applicable Mortgage Loan Seller
shall have delivered an officer's certificate to the Trustee, the Bond
Administrator, the Servicer and the Special Servicer setting forth the reason
such breach or Defect is not capable of being cured within the initial 90-day
period and what actions such Mortgage Loan Seller is pursuing in connection with
the cure thereof and stating that the Mortgage Loan Seller anticipates that such
breach or Defect will be cured within the Resolution Extension Period and (B)
that in the event the related Mortgage Loan Seller fails to cure such breach or
Defect, the Repurchase Price shall include interest on any Advances made in
respect of the related Mortgage Loan (and any related Cross-Collateralized
Loan); it being understood and agreed that none of the Custodian, the Servicer,
the Special Servicer, the Trustee and the Bond Administrator has an obligation
to conduct any investigation with respect to such matters (except, in the case
of the Mortgage Files, to the extent provided in Section 2.01); provided,
however, that in lieu of effecting any such repurchase, within two years of the
Startup Day, such Mortgage Loan Seller will be permitted to deliver a Qualifying
Substitute Mortgage Loan and to pay cash equal to the applicable Substitution
Shortfall Amount, subject to the terms of the related Mortgage Loan Purchase
Agreement and this Agreement. The failure of the Servicer, the Special Servicer,
Trustee or Bond Administrator to notify such Mortgage Loan Seller shall not
constitute a waiver of any cure or repurchase obligation. In the event that (x)
any cure or repurchase obligation under this Section arises by reason of the
failure of a Mortgage Loan to constitute a Qualified Mortgage and the related
Mortgage Loan Seller elects to substitute a Qualifying Substitute Mortgage Loan
in lieu of such cure or repurchase, and (y) the Directing Certificateholder and,
in the case of a Mortgage Loan included in a Loan Pair, the Companion Holder (or
an Operating Advisor acting on its behalf), fail to consent to such
substitution, then such Mortgage Loan (and any related Cross-Collateralized
Loan) must be repurchased by the related Mortgage Loan Seller hereunder. In the
event of either a substitution or repurchase involving the Crowne Plaza Loan
Pair, the servicing agreement in effect between GACC and the related Companion
Holder prior to this Agreement shall revive and take effect from the date of
such substitution or repurchase, unless GACC and such Companion Holder agree
otherwise in writing.
On each Distribution Date, the Custodian shall prepare and
forward to the Bond Administrator, which shall forward to the Depositor, the
Trustee, the Servicer, the Special Servicer, the Directing Certificateholder (as
identified to the Custodian by the Bond Administrator) and with respect to any
Loan Pair, the related Companion Holder (if there is a Defect with respect to
the related Mortgage Loan), a document exception report setting forth the then
current status of any Defects related to the Mortgage Files in a format mutually
agreed upon between the Custodian and the Bond Administrator.
The Depositor and the Trustee hereby give the Servicer and the
Special Servicer pari passu rights with respect to monitoring the timely
correction of any Defect or breach of representation or warranty by any Mortgage
Loan Seller and the enforcement of any obligation to repurchase any Mortgage
Loan. Such enforcement, including, without limitation, the legal prosecution of
claims, shall be carried out in such form, to such extent and at such time as
the Trustee, the Servicer or the Special Servicer, as the case may be, would
require were it, in its individual capacity, the owner of the affected Mortgage
Loan(s). The Trustee, the Servicer and the Special Servicer, as the case may be,
shall be reimbursed for the reasonable costs of such enforcement first, from a
specific recovery of costs, expenses or attorneys' fees against the applicable
Mortgage Loan Seller ordered or awarded pursuant to an adjudication, and second,
out of general collections on the Mortgage Loans (but not the Companion Loans)
on deposit in the Collection Account.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall
direct the related Mortgage Loan Seller to deliver to the Custodian for such
Qualifying Substitute Mortgage Loan (with a copy to the Servicer), the related
Mortgage File with the related Note endorsed as required by Section 2.01(i)
hereof. Monthly Payments due with respect to Qualifying Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust Fund and will
be retained by the Servicer and remitted by the Servicer to the related Mortgage
Loan Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due on the related Removed Mortgage Loan for such month and thereafter
such Mortgage Loan Seller shall be entitled to retain all amounts received in
respect of such Removed Mortgage Loan.
In any month in which a Mortgage Loan Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Removed Mortgage
Loans, the Servicer will determine the applicable Substitution Shortfall Amount.
The Trustee shall direct such Mortgage Loan Seller to deposit cash equal to such
amount into the Collection Account concurrently with the delivery of the
Mortgage Files for such Qualifying Substitute Mortgage Loans, without any
reimbursement thereof. The Trustee shall also direct such Mortgage Loan Seller
to give written notice to the Depositor, the Bond Administrator and the Servicer
of such deposit. The Trustee shall amend the Mortgage Loan Schedule to reflect
the removal of each Removed Mortgage Loan and, if applicable, the substitution
of the Qualifying Substitute Mortgage Loan; and, upon such amendment, the
Trustee shall deliver or cause the delivery of such amended Mortgage Loan
Schedule to the other parties hereto. Upon any such substitution, the Qualifying
Substitute Mortgage Loans shall be subject to the terms of this Agreement in all
respects.
It is understood and agreed that Section 6 of the Mortgage Loan
Purchase Agreements provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any breach of a representation or warranty by a Mortgage Loan Seller
as specified in this Section (including any breach for failure of a Mortgage
Loan to constitute a Qualified Mortgage) or any Defect.
(f) Upon receipt by the Servicer from a Mortgage Loan Seller
of the Repurchase Price for the Removed Mortgage Loan, the Servicer shall
deposit such amount in the Collection Account, and the Trustee, pursuant to
Section 3.11, shall, upon receipt of a certificate of a Servicing Officer
certifying as to the receipt by the Servicer of the Repurchase Price and the
deposit of the Repurchase Price into the Collection Account pursuant to this
Section 2.03(f), promptly release or cause to be released to such Mortgage Loan
Seller the related Mortgage File and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, representation or
warranty, as shall be prepared by the Servicer to vest in such Mortgage Loan
Seller any Mortgage Loan released pursuant hereto, and any rights of the
Depositor in, to and under the related Mortgage Loan Purchase Agreement as it
related to such Removed Mortgage Loan that was initially transferred to the
Trust Fund under Section 2.01, and the Trustee and the Servicer shall have no
further responsibility with regard to such Mortgage File.
(g) Upon a substitution of a Mortgage Loan, the Trustee,
pursuant to Section 3.11, shall, upon receipt by the Custodian of the Mortgage
File for such Qualifying Substitute Mortgage Loan and receipt of a certificate
of a Servicing Officer certifying as to the receipt by the Servicer of a copy of
the Mortgage File for such Qualifying Substitute Mortgage Loans and the
applicable Substitution Shortfall Amount and the deposit of the Substitution
Shortfall Amount into the Collection Account pursuant to this Section 2.03(g),
promptly cause to be released to the Depositor or the related Mortgage Loan
Seller, as applicable, the related Mortgage File of the related Removed Mortgage
Loan and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, representation or warranty, as shall be prepared
by the Servicer to vest in the Depositor or the related Mortgage Loan Seller any
Removed Mortgage Loan released pursuant hereto, and any rights of the Depositor
in, to and under the related Mortgage Loan Purchase Agreement as it related to
such Removed Mortgage Loan that was initially transferred to the Trust Fund
under Section 2.01, and the Trustee and the Servicer shall have no further
responsibility with regard to such Mortgage File. The Servicer shall immediately
notify any related Companion Holder of such substitution.
(h) In the event that any litigation is commenced which
alleges facts which, in the judgment of the Depositor, could constitute a breach
of any of the Depositor's representations and warranties relating to the
Mortgage Loans, the Depositor hereby reserves the right to conduct the defense
of such litigation at its expense and shall not be required to obtain any
consent from the Servicer, the Special Servicer, the Directing Certificateholder
or any Companion Holder (or Operating Advisor acting on its behalf).
(i) If for any reason a Mortgage Loan Seller fails to fulfill
its obligations under this Section 2.03 with respect to any Mortgage Loan, the
Servicer or the Special Servicer, as applicable, shall use reasonable efforts in
enforcing any obligation of such Mortgage Loan Seller to cure, repurchase or
substitute such Mortgage Loan (and any related Cross-Collateralized Loan) under
the terms of the related Mortgage Loan Purchase Agreement, all at the expense of
such Mortgage Loan Seller.
Section 2.04 Representations, Warranties and Covenants of the
Servicer, Special Servicer, Trustee and the Bond Administrator. (a) The
Servicer, as Servicer, hereby represents, warrants and covenants that as of the
Closing Date or as of such date specifically provided herein:
(i) The Servicer is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has all licenses necessary to carry on its business as now
being conducted and is in compliance with the laws of each state (within
the United States of America) in which any Mortgaged Property is located
to the extent necessary to comply with its duties and responsibilities
hereunder with respect to each Mortgage Loan in accordance with the
terms of this Agreement;
(ii) The Servicer has the full power, authority and legal right
to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Servicer
and its performance and compliance with the terms of this Agreement will
not violate the Servicer's certificate of formation or operating
agreement, 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 contract, agreement or other instrument to
which the Servicer is a party or which may be applicable to the Servicer
or any of its assets;
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Servicer and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a legal,
valid and binding obligation of the Servicer, enforceable against it in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law), and all requisite limited liability action has
been taken by the Servicer to make this Agreement and all agreements
contemplated hereby valid and binding upon the Servicer in accordance
with their terms;
(iv) The Servicer is not in violation of, and the execution and
delivery of this Agreement by the Servicer and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court binding on
the Servicer or any law, order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, or result in the
creation or imposition of any lien, charge or encumbrance which, in any
such event, would have consequences that would materially and adversely
affect the condition (financial or otherwise) or operation of the
Servicer or its properties or impair the ability of the Trust Fund to
realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending
or threatened against the Servicer which, either in any one instance or
in the aggregate, would result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Servicer, or would, if adversely determined, materially impair the
ability of the Servicer to carry on its business substantially as now
conducted, or in any material liability on the part of the Servicer, or
which would draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be taken in connection with
the obligations of the Servicer contemplated herein, or which would be
likely to impair materially the ability of the Servicer to perform under
the terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental
agency or body, is required for the execution, delivery and performance
by the Servicer of or compliance by the Servicer with this Agreement, or
if required, such approval has been obtained prior to the Cut-off Date.
(b) The Special Servicer, as Special Servicer, hereby
represents, warrants and covenants that as of the Closing Date or as of such
date specifically provided herein:
(i) The Special Servicer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all licenses necessary to carry on its
business as now being conducted and is in compliance with the laws of
each state (within the United States of America) in which any Mortgaged
Property is located to the extent necessary to comply with its duties
and responsibilities hereunder with respect to each Mortgage Loan in
accordance with the terms of this Agreement;
(ii) The Special Servicer has the full power, authority and legal
right to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Special
Servicer and its performance and compliance with the terms of this
Agreement will not violate the Special Servicer's certificate of
formation or operating agreement 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 contract,
agreement or other instrument to which the Special Servicer is a party
or which may be applicable to the Special Servicer or any of its assets;
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Special Servicer and, assuming due
authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Special
Servicer, enforceable against it in accordance with the terms of this
Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights generally, or by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law), and all requisite
limited liability action has been taken by the Special Servicer to make
this Agreement and all agreements contemplated hereby valid and binding
upon the Special Servicer in accordance with their terms;
(iv) The Special Servicer is not in violation of, and the
execution and delivery of this Agreement by the Special Servicer and its
performance and compliance with the terms of this Agreement will not
constitute a violation with respect to, any law, order or decree of any
court binding on the Special Servicer or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction, or
result in the creation or imposition of any lien, charge or encumbrance
which, in any such event, would have consequences that would materially
and adversely affect the condition (financial or otherwise) or operation
of the Special Servicer or its properties or impair the ability of the
Trust Fund to realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending
or threatened against the Special Servicer which, either in any one
instance or in the aggregate, would result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Special Servicer, or in any material impairment of the
right, or would, if adversely determined, materially impair the ability
of the Special Servicer to carry on its business substantially as now
conducted, or in any material liability on the part of the Special
Servicer, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Special Servicer contemplated
herein, or which would be likely to impair materially the ability of the
Special Servicer to perform under the terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental
agency or body, is required for the execution, delivery and performance
by the Special Servicer of or compliance by the Special Servicer with
this Agreement, or if required, such approval has been obtained prior to
the Cut-off Date.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Trustee, the Depositor and the Servicer or Special Servicer, as the case may be.
Upon discovery by the Depositor, the Servicer, the Special Servicer or a
Responsible Officer of the Trustee (or upon written notice thereof from any
Certificateholder) of a breach of any of the representations and warranties set
forth in this Section which materially and adversely affects the interests of
the Certificateholders, any Companion Holder, the Servicer, Special Servicer or
the Trustee in any Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties hereto and the Mortgage Loan Sellers.
(d) The Trustee hereby represents and warrants that as of the
Closing Date:
(i) The Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the United
States and has full power, authority and legal right to own its
properties and conduct its business as presently conducted and to
execute, deliver and perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Trustee and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid and
binding instrument enforceable against the Trustee in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the transactions herein
contemplated to be performed by the Trustee, nor compliance by the
Trustee with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
applicable law (subject to the appointment in accordance with such
applicable law of any co-Trustee or separate Trustee required pursuant
to this Agreement), governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties or the organizational
documents of the Trustee or the terms of any material agreement,
instrument or indenture to which the Trustee is a party or by which it
is bound.
(iv) The Trustee is not in violation of, and the execution and
delivery of this Agreement by the Trustee and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court binding on
the Trustee or any law, order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, or result in the
creation or imposition of any lien, charge or encumbrance which, in any
such event, would have consequences that would materially and adversely
affect the condition (financial or otherwise) or operation of the
Trustee or its properties or impair the ability of the Trust Fund to
realize on the Mortgage Loans.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental
agency or body, is required for the execution, delivery and performance
by the Trustee of or compliance by the Trustee with this Agreement, or
if required, such approval has been obtained prior to the Cut-off Date.
(e) The Bond Administrator hereby represents and warrants as of
the Closing
Date:
(i) The Bond Administrator is a national banking association duly
organized, validly existing, and in good standing under the laws of the
United States and has full power, authority and legal right to own its
properties and conduct its business as presently conducted and to
execute, deliver and perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Bond Administrator and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a legal,
valid and binding instrument enforceable against the Bond Administrator
in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(iii) Neither the execution and delivery of this Agreement by the
Bond Administrator nor the consummation by the Bond Administrator of the
transactions herein contemplated to be performed by the Bond
Administrator, nor compliance by the Bond Administrator with the
provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any applicable law,
governmental rule, regulation, judgment, decree or order binding on the
Bond Administrator or its properties or the organizational documents of
the Bond Administrator or the terms of any material agreement,
instrument or indenture to which the Bond Administrator is a party or by
which it is bound.
(iv) The Bond Administrator is not in violation of, and the
execution and delivery of this Agreement by the Bond Administrator and
its performance and compliance with the terms of this Agreement will not
constitute a violation with respect to, any order or decree of any court
binding on the Bond Administrator or any law, order or regulation of any
federal, state, municipal or governmental agency having jurisdiction, or
result in the creation or imposition of any lien, charge or encumbrance
which, in any such event, would have consequences that would materially
and adversely affect the condition (financial or otherwise) or operation
of the Bond Administrator or its properties or impair the ability of the
Trust Fund to realize on the Mortgage Loans.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental
agency or body, is required for the execution, delivery and performance
by the Bond Administrator of or compliance by the Bond Administrator
with this Agreement, or if required, such approval has been obtained
prior to the Cut-off Date.
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests. The Trustee acknowledges the assignment to it of
the Mortgage Loans, the Loan REMIC Regular Interests and the Loan REMIC Residual
Interests and the delivery of the Mortgage Files to the Custodian (to the extent
the documents constituting the Mortgage Files are actually delivered to the
Custodian), subject to the provisions of Section 2.01 and Section 2.02 and,
concurrently with such delivery, (i) acknowledges and hereby declares that it
holds the Loan REMIC Regular Interests on behalf of the Lower-Tier REMIC and the
Holders of the Certificates (other than the Class Q-1 and Class Q-2
Certificates) and holds the Loan REMIC Residual Interests on behalf of the
Holders of the Class LR Certificates; (ii) acknowledges the issuance of the
Lower-Tier Regular Interests and the Class LR Certificates and hereby declares
that it holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC
and the Holders of the Certificates (other than the Class Q-1, Class Q-2 and
Class LR Certificates); and (iii) has caused to be executed and caused to be
authenticated and delivered to or upon the order of the Depositor, or as
directed by the terms of this Agreement, Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O, Class Q-1, Class Q-2, Class R and Class LR
Certificates in authorized denominations, in each case registered in the names
set forth in such order or so directed in this Agreement and duly authenticated
by the Authenticating Agent, which Certificates (described in the preceding
clause (iv)), Lower-Tier Regular Interests and Loan REMIC Interests evidence
ownership of the entire Trust Fund.
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Lower-Tier Regular Interests issued hereunder are hereby designated as
the "regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as
the sole class of "residual interests" in the Lower-Tier REMIC within the
meaning of Section 860G(a)(2) of the Code, and represent undivided beneficial
interests in each of the Loan REMIC Residual Interests. The Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N and Class O Certificates are hereby
designated as representing "regular interests" in the Upper-Tier REMIC within
the meaning of Section 860G(a)(1) of the Code and the Class R Certificates are
hereby designated as the sole Class of "residual interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Closing Date is
hereby designated as the "Startup Day" of the Lower-Tier REMIC and the
Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(l) of the Code is the
Scheduled Final Distribution Date.
(b) The Class Q-1 Certificates represent an undivided
beneficial interests in the portion of the Trust Fund consisting of the Default
Interest collected on and allocable to the Mortgage Loans and held from time to
time in the Default Interest Distribution Account, subject to the obligations to
pay the Advance Interest Amount on the related Mortgage Loans. The Class Q-2
Certificates represent an undivided beneficial interests in the portion of the
Trust Fund consisting of the Excess Interest collected on and allocable to the
Mortgage Loans and held from time to time in the Excess Interest Distribution
Account. The Class Q-1 and Class Q-2 Certificates do not represent regular or
residual interests in the Upper-Tier REMIC, the Lower-Tier REMIC or either Loan
REMIC. The Class X Certificates and the Principal Balance Certificates (to the
extent they receive distributions of principal in respect of the repurchase by
GACC of the Wilton Office Plaza Loan in the circumstances specified in Section
2.03(d)) represent undivided beneficial interests in the Wilton Prepayment
Premium Obligation. The Class LR Certificates represent undivided beneficial
interests in the Loan REMIC Residual Interests.
(c) None of the Depositor, the Trustee, the Bond Administrator,
the Servicer or the Special Servicer shall enter into any arrangement by which
the Trust Fund will receive a fee or other compensation for services other than
as specifically contemplated herein.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Servicer to Act as Servicer; Administration of the
Mortgage Loans. (a) The Servicer and the Special Servicer, each as an
independent contractor servicer, shall service and administer the Mortgage Loans
on behalf of the Trust Fund and the Trustee (as Trustee for the
Certificateholders), and in the case of the Companion Loans, on behalf of the
Companion Holders, in each case, in accordance with the Servicing Standard.
The Servicer's or Special Servicer's liability for actions and
omissions in its capacity as Servicer or Special Servicer, as the case may be,
hereunder is limited as provided herein (including, without limitation, pursuant
to Section 6.03 hereof). To the extent consistent with the foregoing and subject
to any express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans or Companion Loans. Subject
only to the Servicing Standard, the Servicer and Special Servicer shall have
full power and authority, acting alone or through sub-servicers (subject to
paragraph (c) of this Section 3.01, to the related agreement with each
subservicer and to Section 3.02), to do or cause to be done any and all things
in connection with such servicing and administration that it may deem consistent
with the Servicing Standard and, in its reasonable judgment, in the best
interests of the Certificateholders and in the case of each Loan Pair, in the
best interests of the Certificateholders and the related Companion Holder (as a
collective whole), including, without limitation, with respect to each Mortgage
Loan and Loan Pair, to prepare, execute and deliver, on behalf of the
Certificateholders, the Companion Holders, the Trustee and the Bond
Administrator or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien on
each Mortgaged Property and related collateral; (ii) any modifications, waivers,
consents or amendments to or with respect to any documents contained in the
related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans or Loan Pairs and the
Mortgaged Properties. Notwithstanding the foregoing, neither the Servicer nor
the Special Servicer shall modify, amend, waive or otherwise consent to any
change of the terms of any Mortgage Loan or Companion Loan except under the
circumstances described in Sections 3.09, 3.10, 3.28, 3.30 and 3.31 hereof. The
Servicer and Special Servicer shall provide to the Borrowers any reports
required to be provided to them thereby pursuant to the related Loan Documents.
Subject to Section 3.11, the Trustee shall, upon the receipt of a written
request of a Servicing Officer, execute and deliver to the Servicer and Special
Servicer any powers of attorney and other documents prepared by the Servicer and
Special Servicer and necessary or appropriate (as certified in such written
request) to enable the Servicer and Special Servicer to carry out their
servicing and administrative duties hereunder.
(b) Unless otherwise provided in the related Note, the
Servicer shall apply any partial Principal Prepayment received on a Mortgage
Loan on a date other than a Due Date to the principal balance of such Mortgage
Loan as of the Due Date immediately following the date of receipt of such
partial Principal Prepayment. Unless otherwise provided in the related Note, the
Servicer shall apply any amounts received on U.S. Treasury obligations (which
shall not be redeemed by the Servicer prior to the maturity thereof) in respect
of a Mortgage Loan being defeased pursuant to its terms to the principal balance
of and interest on such Mortgage Loan as of the Due Date immediately following
the receipt of such amounts.
(c) Each of the Servicer and the Special Servicer may enter
into sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided, that (i) any such agreement shall be
consistent with the provisions of this Agreement and (ii) no sub-servicer
retained by the Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan or Companion Loan without
the approval of the Servicer or the Special Servicer, as applicable, which
approval shall be given or withheld in accordance with the procedures set forth
in Sections 3.09, 3.10, 3.28, 3.30 and/or 3.31 (as applicable), (iii) such
agreement shall be consistent with the Servicing Standard and (iv) such third
party shall be acceptable, so long as any Certificate is then rated by Fitch, to
Fitch as confirmed by a letter from Fitch that such agreement will not cause a
downgrade, withdrawal or qualification of the then-current ratings on the
Certificates. Any such sub-servicing agreement may permit the sub-servicer to
delegate its duties to agents or subcontractors so long as the related
agreements or arrangements with such agents or subcontractors are consistent
with the provisions of this Section 3.01(c). Any monies received by a
sub-servicer pursuant to a sub-servicing agreement (other than sub-servicing
fees) shall be deemed to be received by the Servicer on the date received by
such sub-servicer.
Any sub-servicing agreement entered into by the Servicer or the
Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee or the Servicer, respectively, if the Trustee or the
Servicer, respectively, has assumed the duties of the Servicer or the Special
Servicer, respectively, or any successor Servicer or Special Servicer, as
applicable, without cost or obligation to the assuming or terminating party, the
Trust Fund or the Companion Holders, upon the assumption by such party of the
obligations of the Servicer or the Special Servicer, as applicable, pursuant to
Section 7.02.
Any sub-servicing agreement, and any other transactions or
services relating to the Mortgage Loans and Companion Loans involving a
sub-servicer, shall be deemed to be between the Servicer or the Special
Servicer, as applicable, and such sub-servicer alone, and the Trustee, the Trust
Fund, Certificateholders and the Companion Holders shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the sub-servicer, except as set forth in the immediately
following paragraph or in Section 3.01(d) or to the extent that the Trust Fund
is required to indemnify any such sub-servicer pursuant to this Agreement.
With respect to the Crowne Plaza Loan Pair, the Servicer hereby
agrees that the Crowne Plaza Companion Holder may from time to time appoint or
remove a sub-servicer for the Crowne Plaza Loan Pair, subject to satisfaction of
the conditions set forth in this Section 3.01(c), and in such event, the
Servicer agrees that it will pay such sub-servicer a servicing fee in an amount
equal to 50% of the Master Servicing Fee collected by it on the Crowne Plaza
Loan Pair.
(d) If the Trustee or any successor Servicer assumes the
obligations of the Servicer, or if the Servicer or any successor Special
Servicer assumes the obligations of the Special Servicer, in each case in
accordance with Section 7.02, the Trustee, the Servicer or such successor, as
applicable, to the extent necessary to permit the Trustee, the Servicer or such
successor, as applicable, to carry out the provisions of Section 7.02, shall,
without act or deed on the part of the Trustee, the Servicer or such successor,
as applicable, succeed to all of the rights and obligations of the Servicer or
the Special Servicer, as applicable, under any sub-servicing agreement entered
into by the Servicer or the Special Servicer, as applicable, pursuant to Section
3.01(c), subject to the right of termination by the Trustee or Servicer, as
applicable, set forth in Section 3.01(c). In such event, the Trustee, the
Servicer or the successor Servicer or the Special Servicer, as applicable, shall
be deemed to have assumed all of the Servicer's or the Special Servicer's
interest, as applicable, therein (but not any liabilities or obligations in
respect of acts or omissions of the Servicer or the Special Servicer, as
applicable, prior to such deemed assumption) and to have replaced the Servicer
or the Special Servicer, as applicable, as a party to such sub-servicing
agreement to the same extent as if such sub-servicing agreement had been
assigned to the Trustee, the Servicer or such successor Servicer or successor
Special Servicer, as applicable, except that the Servicer or the Special
Servicer, as applicable, shall not thereby be relieved of any liability or
obligations under such sub-servicing agreement that accrued prior to the
succession of the Trustee, the Servicer or the successor Servicer or successor
Special Servicer, as applicable.
If the Trustee, the Servicer or any successor Servicer or Special
Servicer, as applicable, assumes the servicing obligations of the Servicer or
the Special Servicer, as applicable, then upon request of the Trustee, the
Servicer or such successor Servicer or Special Servicer, as applicable, the
Servicer or Special Servicer shall at its own expense (except in the event that
the Special Servicer is terminated pursuant to Section 3.25(b) or Section
3.25(c), at the expense of the Certificateholders or of the Companion Holder
effecting such termination, as applicable, or in the event that the Servicer or
the Special Servicer is terminated pursuant to Section 6.04(c), at the expense
of the Certificateholders and the Companion Holders, pro rata) deliver to the
Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, all documents and records relating to any sub-servicing agreement
and the Mortgage Loans and Companion Loans then being serviced thereunder and an
accounting of amounts collected and held by it, if any, and will otherwise shall
use its best efforts to effect the orderly and efficient transfer of any
sub-servicing agreement to the Trustee, the Servicer or the successor Servicer
or Special Servicer, as applicable.
(e) The parties hereto acknowledge that each Loan Pair is
subject to the terms and conditions of the related Co-Lender Agreement. With
respect to each Loan Pair, the parties hereto recognize the respective rights
and obligations of the "Noteholders" under the related Co-Lender Agreement,
including with respect to the allocation of collections on or in respect of such
Loan Pair in accordance with Sections 3 and 4 of such Co-Lender Agreement, the
making of payments to the "Noteholders" in accordance with Sections 3 and 4 of
such Co-Lender Agreement, the allocation of expenses on or in respect of such
Loan Pair in accordance with Sections 3, 4 and 20 of such Co-Lender Agreement,
the purchase by the Companion Holder of the related Mortgage Loan pursuant to
Section 11 of the Co-Lender Agreement and the purchase of the Companion Loan in
such Loan Pair by the related Companion Holder in accordance with Section 2 of
such Co-Lender Agreement. The Servicer assumes the obligations of "Servicer"
under each Co-Lender Agreement and, if such Loan Pair is then being specially
serviced, the Special Servicer assumes the obligations of "Special Servicer"
under each Co-Lender Agreement. Nothing herein shall be deemed to override the
provisions of the Co-Lender Agreements with respect to the rights of the
Companion Holders thereunder and in the event of any inconsistency between the
provisions of a Co-Lender Agreement and the provisions of this Agreement
relating to the rights and obligations of the Trustee, as holder of the related
Mortgage Loan, and the related Companion Holder, the Co-Lender Agreement shall
control with respect to such Loan Pair; provided that as to any matter on which
such Co-Lender Agreement is silent, this Agreement shall govern.
Section 3.02 Liability of the Servicer. Notwithstanding any
sub-servicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer or Special Servicer and any
Person acting as sub-servicer (or its agents or subcontractors) or any reference
to actions taken through any Person acting as sub-servicer or otherwise, the
Servicer or Special Servicer, as applicable, shall remain obligated and
primarily liable to the Trustee (on behalf of the Certificateholders) the Bond
Administrator, Certificateholders and each Companion Holder with respect to the
related Companion Loan for the servicing and administering of the Mortgage Loans
and Companion Loans in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue of such sub-servicing
agreements or arrangements or by virtue of indemnification from the Depositor or
any other Person acting as sub-servicer (or its agents or subcontractors) to the
same extent and under the same terms and conditions as if the Servicer or
Special Servicer, as applicable, alone were servicing and administering the
Mortgage Loans and Companion Loans. Each of the Servicer and the Special
Servicer shall be entitled to enter into an agreement with any sub-servicer
providing for indemnification of the Servicer or Special Servicer, as
applicable, by such sub-servicer, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification, but no such agreement for
indemnification shall be deemed to limit or modify this Agreement.
Section 3.03 Collection of Certain Mortgage Loan Payments. (a)
The Servicer or the Special Servicer (with respect to Specially Serviced Loans),
as applicable, shall use reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans and Companion Loans it is
obligated to service hereunder, and shall follow the Servicing Standard with
respect to such collection procedures. With respect to each Performing Mortgage
Loan or Specially Serviced Loan, the Servicer or the Special Servicer, as
applicable, shall use its reasonable efforts to collect income statements and
rent rolls from Borrowers as required by the Loan Documents and the terms hereof
and shall provide copies thereof to the Servicer as provided herein. The
Servicer shall provide at least six months' notice to the Special Servicer and
Borrowers of Balloon Payments coming due. Consistent with the foregoing, the
Servicer (with respect to Performing Mortgage Loans) or the Special Servicer
(with respect to Specially Serviced Loans) may in its discretion waive any late
payment charge in connection with any delinquent Monthly Payment or Balloon
Payment with respect to any Mortgage Loan or Companion Loan. In addition, the
Special Servicer shall be entitled to take such actions with respect to the
collection of payments on the Mortgage Loans and Companion Loans as are
permitted or required under Section 3.28 hereof.
(b) In the event that the Servicer or the Special Servicer
receives Excess Interest in any Collection Period from a Borrower, the Servicer
or the Special Servicer, as applicable, shall (A) in the case of Excess Interest
on a Loan Pair, on the Servicer Remittance Date remit to the appropriate
Companion Distribution Account the amount of such Excess Interest allocable to
the related Companion Loan, and (B) on the Servicer Remittance Date forward all
other such Excess Interest to the Bond Administrator.
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) With respect to each Mortgaged Property (other than any REO
Property), the Servicer shall maintain accurate records with respect to such
Mortgaged Property reflecting the status of taxes, assessments and other similar
items that are or may become a lien on the Mortgaged Property and the status of
insurance premiums payable with respect thereto. From time to time, the Servicer
shall (i) obtain all bills for the payment of such items (including renewal
premiums), and (ii) effect payment of all such bills with respect to such
Mortgaged Properties prior to the applicable penalty or termination date, in
each case employing for such purpose Escrow Payments as allowed under the terms
of the related Mortgage Loan or Loan Pair. If a Borrower fails to make any such
payment on a timely basis or collections from the Borrower are insufficient to
pay any such item before the applicable penalty or termination date, the
Servicer or the Special Servicer, as applicable, shall advance the amount of any
shortfall as a Property Advance unless the Servicer or the Special Servicer, as
applicable, determines in its good faith business judgment that such Advance
would be a Nonrecoverable Advance. The Servicer or the Special Servicer, as
applicable, shall be entitled to reimbursement of Property Advances, with
interest thereon at the Advance Rate, that it makes pursuant to the preceding
sentence from amounts received on or in respect of the related Mortgage Loan or
Loan Pair respecting which such Advance was made or if such Advance has become a
Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Servicer or the Special Servicer, as
applicable, in effecting the payment of taxes and assessments on the Mortgaged
Properties shall, for the purpose of calculating distributions to
Certificateholders or Companion Holders, be added to the amount owing under the
related Mortgage Loans or Companion Loans, notwithstanding that the terms of
such Mortgage Loans or Companion Loans so permit.
(b) The Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan or any Loan Pair constituting Escrow
Payments separate and apart from any of its own funds and general assets and
shall establish and maintain one or more segregated custodial accounts (each, an
"Escrow Account") into which all Escrow Payments shall be deposited within one
(1) Business Day after receipt. The Servicer shall also deposit into each Escrow
Account any amounts representing losses on Permitted Investments pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan or Loan Pair. Escrow Accounts shall be
Eligible Accounts (except to the extent the related Mortgage Loan or Loan Pair
requires it to be held in an account that is not an Eligible Account) and shall
be entitled "Orix Real Estate Capital Markets, LLC, as Servicer, in trust for
Wells Fargo Bank Minnesota, N.A., as Trustee in trust for Holders of Deutsche
Mortgage & Asset Receiving Corporation, COMM 2000-C1 Commercial Mortgage
Pass-Through Certificates, and the related Companion Holder, if any, and Various
Borrowers." Withdrawals from an Escrow Account may be made by the Servicer only:
(i) to effect timely payments of items constituting Escrow
Payments for the related Mortgage;
(ii) to transfer funds to the Collection Account to reimburse the
Servicer, the Special Servicer or the Trustee for any Property Advance
(with interest thereon at the Advance Rate) relating to Escrow Payments,
but only from amounts received with respect to the related Mortgage Loan
or Loan Pair which represent late collections of Escrow Payments
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan or Loan
Pair and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement;
(v) to pay from time to time to the related Borrower any interest
or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Borrower under law or
by the terms of the Mortgage Loan or Loan Pair, or otherwise to the
Servicer; or
(vi) to remove any funds deposited in an Escrow Account that were
not required to be deposited therein.
(c) The Servicer shall, as to each and every Mortgage Loan and
Companion Loan, (i) maintain accurate records with respect to the related
Mortgaged Property reflecting the status of real estate taxes, assessments and
other similar items that are or may become a lien thereon and the status of
insurance premiums and any ground rents payable in respect thereof and (ii) use
reasonable efforts to obtain, from time to time, all bills for (or otherwise
confirm) the payment of such items (including renewal premiums) and, for the
Mortgage Loans and Loan Pairs that require the related Borrower to escrow for
such items, shall effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment for which it is
responsible, the Servicer shall apply Escrow Payments as allowed under the terms
of the related Mortgage Loan or Loan Pair (or, if such Mortgage Loan or Loan
Pair does not require the related Borrower to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause the related Borrower to comply with the requirement
of the related Mortgage that the Borrower make payments in respect of such items
at the time they first become due and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items). Subject to Section 3.24, the Servicer
shall timely make a Property Advance to cover any such item which is not so
paid, including any penalties or other charges arising from the Borrower's
failure to timely pay such items.
Section 3.05 Collection Account; Interest Reserve Account;
Upper-Tier Distribution Account, Lower-Tier Distribution Account and Excess
Liquidation Proceeds Account. (a) The Servicer shall establish and maintain the
Collection Account in the Trustee's name, for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests and the Loan REMIC Interests. The Collection Account shall be
established and maintained as an Eligible Account. Amounts attributable to the
Mortgage Loans (other than the Loan REMIC Loans), exclusive of Default Interest,
Excess Interest and the Wilton Prepayment Premium Obligation, and the Loan REMIC
Regular Interests will be assets of the Lower-Tier REMIC. Amounts attributable
to the Loan REMIC Loans will be assets of the related Loan REMIC. Amounts
attributable to the Loan REMIC Residual Interests and to the Mortgage Loans in
respect of Default Interest, Excess Interest and the Wilton Prepayment Premium
Obligation will be assets of the Grantor Trust. Amounts attributable to the
Companion Loans will not be assets of the Trust Fund, and will be transferred to
the appropriate Companion Distribution Account pursuant to Section 3.06(c). The
Servicer shall maintain adequate books and records to account for the separate
entitlements of the Lower-Tier REMIC (including without limitation on a Mortgage
Loan-by-Mortgage Loan basis), the Grantor Trust and each Companion Loan. The
Servicer shall deposit or cause to be deposited in the Collection Account within
one Business Day following receipt the following payments and collections
received or made by it on or with respect to the Mortgage Loans or the Loan
Pairs:
(i) all payments on account of principal on the Mortgage Loans
and Companion Loans, including the principal component of Unscheduled
Payments;
(ii) all payments on account of interest on the Mortgage Loans
and Companion Loans and the interest portion of all Unscheduled
Payments, Prepayment Premiums, Default Interest and Excess Interest;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant
to Section 3.17(b);
(v) any amounts received from Borrowers which represent
recoveries of Property Protection Expenses and are allocable to the
Mortgage Loans or the Companion Loans, to the extent not permitted to be
retained by the Servicer as provided herein;
(vi) Excess Liquidation Proceeds;
(vii) any other amounts required by the provisions of this
Agreement to be deposited into the Collection Account by the Servicer or
Special Servicer; and
(viii) any Servicer Prepayment Interest Shortfalls.
In the case of Default Interest and Excess Interest, the Servicer
shall make appropriate ledger entries reflecting amounts received with respect
thereto, which the Servicer shall hold for (i) the Trustee for the benefit of
the Class Q-1 Certificateholders (with respect to Default Interest allocable to
the Mortgage Loans) and the Class Q-2 Certificateholders (with respect to Excess
Interest allocable to the Mortgage Loans), and (ii) the Companion Paying Agent
for the benefit of any Companion Holder entitled thereto (with respect to Excess
Interest allocable to the related Companion Loan); amounts of Default Interest
and Excess Interest collected on a Mortgage Loan or Companion Loan shall be
identified separately from any amounts in the Collection Account held for the
Trustee for the benefit of REMIC Certificateholders or any other Companion
Holder (with amounts attributable to a Class and any Companion Loan also
identified separately). In the case of Excess Liquidation Proceeds, the Servicer
shall make appropriate ledger entries received with respect thereto, which the
Servicer shall hold for (i) the Trustee for the benefit of the Class or Classes
of Certificateholders and (ii) the Companion Paying Agent for the benefit of any
Companion Holder entitled thereto; amounts of Excess Liquidation Proceeds shall
be identified separately from any other amounts held in the Collection Account
(with amounts attributable to each Class or Classes and any Companion Loan also
identified separately).
The foregoing requirements for deposits in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
(subject to Section 3.12 hereof), Assumption Fees, loan modification fees, loan
service transaction fees, extension fees, demand fees, beneficiary statement
charges and similar fees need not be deposited in the Collection Account by the
Servicer and, to the extent permitted by applicable law, the Servicer or the
Special Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans as additional compensation. In the event that the Servicer
deposits in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Collection Account,
any provision herein to the contrary notwithstanding.
(b) The Bond Administrator shall establish and maintain the
Distribution Account and the Lower-Tier Distribution Account, each in the name
of the Trustee, in trust for the benefit of the Certificateholders and the
Trustee as the Holder of the Lower-Tier Regular Interests and the Loan REMIC
Interests. A separate subaccount of the Lower-Tier Distribution Account shall be
maintained with respect to the Loan REMIC Residual Interests, which shall be
assets of the Grantor Trust and beneficially owned by the Holders of the Class
LR Certificates. The Lower-Tier Distribution Account shall be established and
maintained as an Eligible Account or as a subaccount of the Distribution
Account. With respect to each Distribution Date, upon receipt from the Servicer
of amounts held in the Collection Account, the Bond Administrator shall deposit
in the Lower-Tier Distribution Account the amount of Available Funds, to be
distributed pursuant to Section 4.01 hereof on such Distribution Date and any
amount distributable with respect to the Loan REMIC Residual Interests pursuant
to the Loan REMIC Declarations. All such amounts deposited in respect of the
Fairgrounds Square Loan and the Towne Square Apartments Loan shall be deemed to
be distributed in respect of the related Loan REMIC Regular Interests and the
Loan REMIC Residual Interests as set forth in the related Loan REMIC
Declarations.
(c) The Bond Administrator shall establish and maintain the
Interest Reserve Account in the name of the Trustee, in trust for the benefit of
the Certificateholders and the Trustee as the Holder of the Loan REMIC Regular
Interests and Lower-Tier Regular Interests. The Interest Reserve Account shall
be established and maintained as an Eligible Account.
On each Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Bond Administrator shall calculate the Withheld Amount. On each such
Servicer Remittance Date, the Bond Administrator shall, with respect to each
Mortgage Loan that does not accrue interest on the basis of a 360-day year of
twelve 30-day months, withdraw from the Lower-Tier Distribution Account and
deposit in the Interest Reserve Account an amount equal to the aggregate of the
Withheld Amounts calculated in accordance with the previous sentence. If the
Bond Administrator shall deposit in the Interest Reserve Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Interest Reserve Account, any provision herein to the contrary
notwithstanding. On or prior to the Servicer Remittance Date in March of each
calendar year, the Bond Administrator shall transfer to the Lower-Tier
Distribution Account the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account.
The Servicer may, from time to time, request the Bond
Administrator to make withdrawals from the Interest Reserve Account to pay
itself, as additional servicing compensation in accordance with Section 3.12,
net interest and investment income earned in respect of amounts in the Interest
Reserve Account.
(d) The Bond Administrator shall establish and maintain the
Upper-Tier Distribution Account in the name of the Trustee, in trust for the
benefit of the Certificateholders. The Upper-Tier Distribution Account shall be
established and maintained as an Eligible Account or a subaccount of an Eligible
Account. With respect to each Distribution Date, the Bond Administrator shall
withdraw from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account on or before such date the Lower-Tier Distribution Amount
and Prepayment Premiums to be distributed in respect of the Lower-Tier Regular
Interests pursuant to Section 4.0l(a)(iii) and Section 4.0l(c)(ii) hereof on
such date. Separate ledger entries shall be maintained in respect of amounts
received pursuant to the Wilton Prepayment Premium Obligation, which shall be an
asset of the Grantor Trust.
(e) Prior to the Servicer Remittance Date relating to any
Collection Period in which Default Interest is received, the Bond Administrator
shall establish and maintain the Default Interest Distribution Account in the
name of the Trustee in trust for the benefit of the Holders of the Class Q-1
Certificates. The Default Interest Distribution Account shall be established and
maintained as an Eligible Account. On the Servicer Remittance Date related to
each Distribution Date, the Servicer shall remit to (A) the Bond Administrator
for its deposit in the Default Interest Distribution Account an amount equal to
the sum of (i) the amount of the aggregate collected Default Interest allocable
to the Mortgage Loans received during the preceding Collection Period, minus
(ii) any portions thereof withdrawn from the Collection Account pursuant to
Section 3.06(d)(iii) for Advance Interest Amounts incurred during such
Collection Period and pursuant to Section 3.06(d)(vii) for unreimbursed
Additional Trust Fund Expenses incurred during or prior to such Collection
Period (such amount, if any, the "Net Default Interest" for such Distribution
Date) and (B) the Companion Paying Agent for deposit into the appropriate
Companion Distribution Account the amount of Default Interest on each Companion
Loan equal to the sum of (i) the amount of the aggregate collected Default
Interest allocable to such Companion Loan received during the preceding
Collection Period on the related Loan Pair, minus (ii) any portions thereof
withdrawn from the Collection Account pursuant to Section 3.06(e)(iii) for
Advance Interest Amounts incurred in respect of the related Loan Pair during
such Collection Period and pursuant to Section 3.06(e)(vii) for unreimbursed
Additional Trust Fund Expenses in respect of the related Loan Pair incurred
during or prior to such Collection Period.
(f) Prior to the Servicer Remittance Date relating to any
Collection Period in which Excess Interest is received, the Bond Administrator
shall establish and maintain the Excess Interest Distribution Account in the
name of the Trustee in trust for the benefit of the Holders of the Class Q-2
Certificates. The Excess Interest Distribution Account shall be established and
maintained as an Eligible Account. On the Servicer Remittance Date related to
the applicable Distribution Date, the Servicer shall remit to (A) the Bond
Administrator for its deposit in the Excess Interest Distribution Account an
amount equal to the Excess Interest received during the applicable Collection
Period which is allocable to the Mortgage Loans and (B) with respect to any
Excess Interest received during the allocable Collection Period on any Companion
Loan, to the Companion Paying Agent for deposit into the appropriate Companion
Distribution Account the amount thereof which is allocable to the related
Companion Loan. Following the distribution of Excess Interest to
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding, which pursuant to their terms could pay
Excess Interest, the Bond Administrator shall terminate the Excess Interest
Distribution Account.
(g) Prior to the Servicer Remittance Date relating to any
Collection Period in which Excess Liquidation Proceeds are received, the Bond
Administrator shall establish and maintain the Excess Liquidation Proceeds
Account in accordance with Section 3.17(e). On the Servicer Remittance Date
related to the applicable Distribution Date, the Servicer shall remit (A) to the
Bond Administrator for its deposit in the Excess Liquidation Proceeds Account,
for distribution on such Distribution Date, the amount to be applied as provided
in Section 4.01(f); provided that on the Business Day prior to the final
Distribution Date, the Bond Administrator shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Lower-Tier Distribution Account
(after application to any related Companion Loan as provided in Section
4.01(f)), for distribution on such Distribution Date, any and all amounts then
on deposit in the Excess Liquidation Proceeds Account attributable to the
Mortgage Loans, and (B) to the Companion Paying Agent for deposit into the
appropriate Companion Distribution Account the amount of any Excess Liquidation
Proceeds received during such Collection Period on a Loan Pair which are
allocable to the related Companion Loan.
(h) Funds in the Collection Account, the Interest Reserve
Account, any REO Account and any Excess Liquidation Proceeds Account may be
invested in Permitted Investments in accordance with the provisions of Section
3.07. The Servicer shall give written notice to the Trustee and the Bond
Administrator of the location and account number of the Collection Account and
shall notify the Trustee and the Bond Administrator, as applicable, in writing
prior to any subsequent change thereof.
Section 3.06 Permitted Withdrawals from the Collection Account;
Trust Ledger; Companion Ledgers; Companion Distribution Account. (a) On each
Servicer Remittance Date, the Servicer shall, with respect to each Mortgage Loan
and prior to making any allocations between amounts allocable to the Lower-Tier
REMIC and the Grantor Trust or between amounts allocable to the Mortgage Loans
and the Companion Loans, if any, pursuant to Section 3.06(b), make withdrawals
from or debits to the Collection Account only as described below (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to withdraw from the Collection Account any sums deposited
therein in error and pay such sums to the Persons entitled thereto;
(ii) to pay from time to time to the Servicer in accordance with
Section 3.07(b) any interest or investment income earned on funds
deposited in the Collection Account;
(iii) to reimburse itself (if it is not the affected Mortgage
Loan Seller), the Special Servicer, the Bond Administrator or the
Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise
to a repurchase obligation on the part of a Mortgage Loan Seller,
including, without limitation, any expenses arising out of the
enforcement of the repurchase obligation, together with interest thereon
at the Advance Rate, each such Person's right to reimbursement pursuant
to this clause (iii) with respect to such Mortgage Loan being limited to
that portion of the Repurchase Price paid for such Mortgage Loan that
represents such expense in accordance with the definition of Repurchase
Price;
(iv) to transfer Excess Liquidation Proceeds allocable to
Mortgage Loans to the Lower-Tier Distribution Account for deposit by the
Bond Administrator into the Excess Liquidation Proceeds Account in
accordance with Section 3.17(e); and
(v) to pay itself, the Special Servicer or any Mortgage Loan
Seller, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to or as contemplated by
this Agreement, all amounts received on such Mortgage Loan subsequent to
the date of purchase.
(b) (i) On each Servicer Remittance Date and with respect to
each Mortgage Loan, the Servicer shall allocate to the Mortgage Loans and the
Loan REMIC Interests by ledger entries to the Trust Ledger the following amounts
from funds on deposit in the Collection Account with respect to such Mortgage
Loan:
(A) except as provided in clause (B) immediately below,
all payments received on account of principal (including any
Principal Prepayments and the Monthly Payment on any delinquent
Mortgage Loan) and interest on each Mortgage Loan, but in the
case of a Loan Pair, only to the extent allocable to the Mortgage
Loan therein pursuant to the terms of Section 3 or 4 of the
related Co-Lender Agreement; and
(B) the Repurchase Price received in connection with any
repurchase of a Mortgage Loan by any Mortgage Loan Seller.
(ii) On each Servicer Remittance Date and with respect to each
Loan Pair, the Servicer shall allocate to each Companion Loan by ledger
entries to the related Companion Ledger from funds on deposit in the
Collection Account (other than funds allocable to the Trust Ledger
pursuant to clause (b)(i) immediately above) with respect to such
Companion Loan all payments received on account of principal (including
any Principal Prepayments and the Monthly Payment on any delinquent
Mortgage Loan) and interest on such Companion Loan (including Default
Interest and Excess Interest), plus all Net Liquidation Proceeds and
other payments and recoveries (including reimbursements of Advances and
Advance Interest Amounts which have previously been deducted from
amounts otherwise allocable or distributable to the related Companion
Holder) on such Loan Pair which are allocable to the related Companion
Loan under Section 3 or 4 of the related Co-Lender Agreement; and
(iii) In making the foregoing deposits into the Collection
Account and the allocations of amounts received with respect to any Loan
Pair between the Trust Ledger and the related Companion Ledger, if the
Special Servicer, in connection with a workout of a Mortgage Loan or
Loan Pair, has modified the terms thereof such that (i) the related
outstanding principal balance of such Note(s) is decreased, (ii) the
Mortgage Rate or scheduled amortization payments on the related Note(s)
are reduced, (iii) payments of interest or principal on such Note(s) are
waived, reduced or deferred or (iv) any other adjustment is made to the
economic terms of such Mortgage Loan or Loan Pair, all deposits to the
Collection Account and allocations between the Trust Ledger and related
Companion Ledger pursuant to this Section 3.06 shall be made as though
such workout did not occur, with the payment terms of such Mortgage Loan
remaining the same as they are on the date hereof, and the related
Companion Loan (and, as a result, amounts identified on the related
Companion Ledger as attributable to such Companion Loan) shall bear all
waivers, reductions or deferrals of amounts due on such Mortgage Loan
and the related Note attributable to such workout (up to the amount of
the amounts distributable to the related Companion Holder from amounts
on deposit in the Collection Account and identified on the related
Companion Ledger as attributable to such Companion Loan).
(c) The Companion Paying Agent shall establish and maintain a
Companion Distribution Account for the benefit of each respective Companion
Holder. Each Companion Distribution Account shall be maintained as a segregated
account, separate and apart from other accounts (including the other Companion
Distribution Accounts) administered by the Companion Paying Agent. The Companion
Paying Agent may, with the consent of each Companion Holder, establish a single
Companion Distribution Account for deposit of amounts distributable to Companion
Holders; provided, that it shall maintain adequate books and records with
respect to all amounts on deposit from time to time in such Companion
Distribution Account identifying the Companion Loan to which all such deposits
relate. The Companion Paying Agent shall have the exclusive right to withdraw
funds from the Companion Distribution Account. Amounts on deposit in the
Companion Distribution Accounts will not be assets of the Trust Fund, and will
be beneficially owned by the related Companion Holders.
The Servicer shall deliver to the Companion Paying Agent each
month on or before the Servicer Remittance Date therein, for deposit in the
applicable Companion Distribution Account, that portion of the Available
Companion Distribution Amount for the related Companion Loan (calculated without
regard to clause (b) of the definition thereof) for the related Distribution
Date then on deposit in the Collection Account and identified on the related
Companion Ledger as attributable to such Companion Loan.
(d) The Servicer shall maintain a separate Trust Ledger with
respect to the Mortgage Loans on which it shall make ledger entries as to
amounts deposited (or credited) or withdrawn (or debited) with respect thereto.
With respect to each Mortgage Loan, the Servicer may make withdrawals from
amounts allocated thereto in the Collection Account (and may debit the Trust
Ledger) only as described below (the order set forth below not constituting an
order of priority for such withdrawals):
(i) to remit to the Bond Administrator for deposit the amounts
required to be deposited to the Lower-Tier Distribution Account, which
the Bond Administrator shall then deposit into the Interest Reserve
Account, the Default Interest Distribution Account, the Excess
Liquidation Proceeds Account and the Excess Interest Distribution
Account, pursuant to Sections 3.05(c), 3.05(e), 3.05(f) and 3.05(g),
respectively;
(ii) (A) to pay or reimburse the Trustee, the Special Servicer
and the Servicer for Advances attributable to such Mortgage Loan or (B)
if a Loan Pair is involved, to pay or reimburse the Trustee, the Special
Servicer and the Servicer for Advances attributable to the related
Mortgage Loan that remain unreimbursed or unpaid after any application
of funds pursuant to Section 3.06(e) (provided, that, in the case of
clause (A) or clause (B), the Trustee shall have priority with respect
to such payment or reimbursement), the Servicer's right to reimburse any
such Person pursuant to this clause (ii) being limited to (x)
collections on or in respect of the particular Mortgage Loan or Loan
Pair or REO Property with respect to which such Advance was made, or (y)
any other amounts identified on the Trust Ledger in the event that such
Advances have been deemed to be Nonrecoverable Advances or are not
reimbursed from recoveries in respect of the related Mortgage Loan or
Loan Pair or REO Property after a Final Recovery Determination;
(iii) (A) to pay to the Servicer or the Trustee the Advance
Interest Amount relating to P&I Advances with respect to a Mortgage Loan
and (B) to pay to the Servicer, the Special Servicer or the Trustee any
Advance Interest Amounts on Property Advances with respect to a Mortgage
Loan or Loan Pair, in each case in the event a Loan Pair is involved,
that remains unreimbursed or unpaid after any application of funds
pursuant to Section 3.06(e), and to the extent available, first, out of
any collected Default Interest on such Mortgage Loan by the related
Borrower, second, out of collected late payment fees relating to such
Mortgage Loan, and third, upon determining in good faith that such
Advance Interest Amount is not recoverable from the amounts described in
first or second, from any other amounts from time to time on deposit in
the Collection Account and identified on the Trust Ledger (provided,
that, in the case of both clauses (A) and (B), the Trustee and the Bond
Administrator, as applicable, shall have priority with respect to such
payments);
(iv) to pay on or before each Servicer Remittance Date to the
Servicer and the Special Servicer, as applicable, as compensation, the
aggregate unpaid Servicing Compensation and Special Servicing
Compensation (if any, including any Workout Fee due to a previous
Special Servicer pursuant to Section 3.12(c)), respectively, in respect
of the immediately preceding month, (x) to be paid in the case of the
Servicing Fee, from interest received on such Mortgage Loan, and (y) if
a Loan Pair is involved, that remain unreimbursed or unpaid after any
application of funds pursuant to Section 3.06(e), and to pay from time
to time to the Servicer or the Special Servicer in accordance with
Section 3.07(b) any interest or investment income earned on funds
deposited in the Collection Account attributable to such Mortgage Loan
and identified on the Trust Ledger (the Servicer may rely on a
certification of the Special Servicer as to amounts of Special Servicing
Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Lower-Tier Distribution Account, an amount
equal to the Trustee Fee in respect of the immediately preceding month
to be paid from interest received or advanced on the related Mortgage
Loan (which, if a Loan Pair is involved, remains unreimbursed or unpaid
after any application of funds pursuant to Section 3.06(e));
(vi) to pay on or before each Distribution Date to a Mortgage
Loan Seller with respect to each Mortgage Loan or REO Property that has
previously been purchased or repurchased by it pursuant to Section
2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts
received thereon during the related Collection Period, subsequent to the
date as of which the amount required to effect such purchase or
repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other
clause of this Section 3.06, to reimburse or pay the Servicer, the
Trustee, the Bond Administrator, the Special Servicer or the Depositor,
as applicable, for unpaid Servicing Fees, Special Servicing
Compensation, Property Protection Expenses and other unpaid items
incurred by such Person pursuant to Section 3.07(c), Section 3.22(f),
Section 3.26(f), Section 3.28(a), Section 4.04, Section 6.03, Section
6.06, Section 7.04, Section 8.01(c)(v), Section 8.05(c), Section 8.05(e)
or Section 10.07, or any other provision of this Agreement pursuant to
which such Person is entitled to reimbursement or payment from the Trust
Fund, in each case only to the extent reimbursable under such Section
and, if a Loan Pair is involved, only to the extent such amounts remain
unreimbursed or unpaid after any application of funds pursuant to
Section 3.06(e), it being acknowledged that this clause (vii) shall not
be deemed to modify the substance of any such Section, including the
provisions of such Section that set forth the extent to which one of the
foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Bond Administrator for deposit in one
or more separate, non-interest bearing accounts any amount reasonably
determined by the Bond Administrator to be necessary to pay any
applicable federal, state or local taxes imposed on the Upper-Tier
REMIC, the Lower-Tier REMIC or either Loan REMIC under the circumstances
and to the extent described in Section 4.05;
(ix) to withdraw or debit any amount deposited into the
Collection Account and identified on the Trust Ledger that was not
required to be deposited therein or credited to the Trust Ledger; and
(x) to clear and terminate the Collection Account pursuant to
Section 9.01.
Amounts that may be debited from the Trust Ledger pursuant to
clauses (iii) and (vii) that do not relate to a specific Mortgage Loan shall be
allocated pro rata based on Stated Principal Balances, among separate ledger
entries relating to the Loan REMIC and the Lower-Tier REMIC.
(e) The Servicer shall maintain a separate Companion Ledger
with respect to each Companion Loan on which it shall make ledger entries as to
the amounts deposited (or credited) or withdrawn (or debited) with respect
thereto. With respect to each Companion Loan, subject to Section 3.01(e), the
Servicer may make withdrawals from amounts allocated thereto in the Collection
Account (and debit the related Companion Ledger) only as described below (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Companion Paying Agent for deposit the
amounts required to be deposited in the related Companion Distribution
Account, pursuant to Section 3.06(c);
(ii) to pay or reimburse the Trustee, the Special Servicer and
the Servicer for Property Advances relating to the related Loan Pair
(provided, that the Trustee shall have priority with respect to such
payment or reimbursement), the Servicer's right to reimburse any such
Person pursuant to this clause (ii) being limited (x) to collections on
or in respect of the particular Loan Pair or REO Property with respect
to which such Property Advance was made, or (y) to any other amounts
identified on the related Companion Ledger as attributable to such
Companion Loan in the event that such Property Advances relating to such
Loan Pair have been deemed to be Nonrecoverable Advances or are not
reimbursed from recoveries in respect of such Loan Pair or REO Property
after a Final Recovery Determination;
(iii) (A) to pay to the Servicer or the Trustee the Advance
Interest Amount relating to P&I Advances on the related Mortgage Loan
and (B) to pay to the Servicer, the Special Servicer or the Trustee any
Advance Interest Amounts on Property Advances with respect to the
related Loan Pair, in each case, first, out of any collected Default
Interest on the related Loan Pair by the related Borrower, second, out
of any collected late payment fees relating to such Loan Pair paid by
the related Borrower or any other amounts identified on the related
Companion Ledger as attributable to such Companion Loan, third, subject
to Section 1.04 hereof, upon determining in good faith that such Advance
Interest Amount is not recoverable from the amounts described in first
or second, from any other collections from time to time on deposit in
the Collection Account and identified on the Trust Ledger as relating to
that Loan Pair, and fourth, upon determining in good faith that such
Advance Interest Amount is not recoverable from the amounts described in
first, second or third, from any other amounts from time to time on
deposit in the Collection Account and identified on the Trust Ledger
(provided, that, in the case of both clauses (A) and (B), the Trustee
and the Bond Administrator, as applicable, shall have priority with
respect to such payments);
(iv) to pay on or before each Servicer Remittance Date to the
Servicer and the Special Servicer, as applicable, as compensation, the
aggregate unpaid Servicing Compensation and Special Servicing
Compensation (if any, including any Workout Fee due to a previous
Special Servicer pursuant to Section 3.12(c)), respectively, allocable
to such Companion Loan in respect of the immediately preceding month, to
be paid, in the case of the Servicing Fee, from interest received on
such Companion Loan, and to pay from time to time to the Servicer or the
Special Servicer in accordance with Section 3.07(b) any interest or
investment income earned on funds deposited in the Collection Account
and identified on the related Companion Ledger as attributable to such
Companion Loan) (the Servicer may rely on a certification of the Special
Servicer as to amounts of Special Servicing Compensation to be withdrawn
pursuant to this clause (iv));
(v) [Reserved];
(vi) to pay on or before each Distribution Date to a Mortgage
Loan Seller with respect to each REO Property securing such Companion
Loan that has previously been purchased or repurchased by it pursuant to
Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all
amounts received thereon during the related Collection Period and,
subsequent to the date as of which the amount required to effect such
purchase or repurchase was determined, that remain unreimbursed or
unpaid after the application of funds identified on the related
Companion Ledger as attributable to such Companion Loan;
(vii) to the extent not reimbursed or paid pursuant to any other
clause of this Section 3.06, to reimburse or pay the Servicer, the
Trustee, the Bond Administrator, the Special Servicer or the Depositor,
as applicable, for unpaid Companion Servicing Fees, Special Servicing
Compensation, unpaid Property Protection Expenses with respect to such
Companion Loan and other unpaid items specified in Section 1.04, or any
other provision of this Agreement pursuant to which such Person is
entitled to reimbursement or payment from amounts identified on the
related Companion Ledger as attributable to such Companion Loan, in each
case only to the extent reimbursable under such Section and in
accordance with Sections 1.04 and 3.01(e), it being acknowledged that
this clause (vii) shall not be deemed to modify the substance of any
such Section, including the provisions of such Section that set forth
the extent to which one of the foregoing Persons is or is not entitled
to payment or reimbursement; and
(viii) to withdraw or debit any amount deposited into the
Collection Account and identified on the related Companion Ledger as
attributable to such Companion Loan that was not required to be
deposited therein or credited thereto.
The Servicer shall keep and maintain separate accounting records,
on a Mortgage Loan by Mortgage Loan basis and with respect to any Loan Pair,
reflecting amounts allocable to the Mortgage Loan and related Companion Loan,
when appropriate for the purpose of justifying any withdrawal, debit or credit
from the Collection Account, the Trust Ledger or any Companion Ledger.
The Servicer shall pay to the Trustee, the Bond Administrator or
the Special Servicer from the Collection Account (to the extent permitted by
clauses (i) to (viii) above of subsection (d) and clauses (i) to (vii) of
subsection (e)) amounts permitted to be paid to the Trustee, the Bond
Administrator or the Special Servicer therefrom, promptly upon receipt of a
certificate of a Responsible Officer of the Trustee or the Bond Administrator or
a certificate of a Servicing Officer, as applicable, describing the item and
amount to which such Person is entitled. The Servicer may rely conclusively on
any such certificate and shall have no duty to recalculate the amounts stated
therein.
The Trustee, the Bond Administrator, the Special Servicer and the
Servicer shall in all cases have a right prior to the Certificateholders and to
the extent expressly provided in Sections 1.04 and 3.01(e), the Companion
Holders to any funds on deposit in the Collection Account from time to time for
the reimbursement or payment of the Servicing Compensation (including investment
income), Trustee Fees, Special Servicing Compensation, Advances, Advance
Interest Amounts, their respective expenses hereunder to the extent such fees
and expenses are to be reimbursed or paid from amounts on deposit in the
Collection Account pursuant to this Agreement (and to have such amounts paid
directly to third party contractors for any invoices approved by the Trustee,
the Bond Administrator, the Servicer or the Special Servicer, as applicable). In
addition, the Trustee, the Bond Administrator, the Special Servicer and the
Servicer shall in all cases have a right prior to the Certificateholders to any
funds on deposit in the Collection Account from time to time for the
reimbursement or payment of any federal, state or local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or either Loan REMIC.
On each Servicer Remittance Date, all income and gain realized
from investment of funds to which the Servicer or the Special Servicer is
entitled pursuant to Section 3.07(b), if held in the Interest Reserve Account,
any Excess Liquidation Proceeds Account or REO Account shall be subject to
withdrawal by the Servicer or the Special Servicer, as applicable.
Section 3.07 Investment of Funds in the Collection Account, the
REO Account, the Interest Reserve Account, the Excess Liquidation Proceeds
Account, the Lock-Box Accounts, the Cash Collateral Accounts and the Reserve
Accounts. (a) The Servicer (or with respect to any REO Account, the Special
Servicer) may direct any depository institution maintaining the Collection
Account, the Interest Reserve Account, any Borrower Accounts (subject to the
second succeeding sentence), any REO Account and any Excess Liquidation Proceeds
Account (each, for purposes of this Section 3.07, an "Investment Account"), to
invest the funds in such Investment Account in one or more Permitted Investments
that bear interest or are sold at a discount, and that mature, unless payable on
demand, no later than the Business Day preceding the date on which such funds
are required to be withdrawn from such Investment Account pursuant to this
Agreement. Any investment of funds on deposit in an Investment Account by the
Servicer or the Special Servicer shall be documented in writing and shall
provide evidence that such investment is a Permitted Investment which matures at
or prior to the time required hereby or is payable on demand. In the case of any
Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve Account
(the "Borrower Accounts"), the Servicer shall act upon the written request of
the related Borrower or Manager to the extent the Servicer is required to do so
under the terms of the respective Loan Documents, provided that in the absence
of appropriate written instructions from the related Borrower or Manager meeting
the requirements of this Section 3.07, the Servicer shall have no obligation to,
but will be entitled to, direct the investment of funds in such accounts in
Permitted Investments. 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) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Servicer or the
Special Servicer, with respect to any REO Accounts, as an independent contractor
to the Trust Fund) over each such investment and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent (which shall initially be the Servicer), together with any
document of transfer, if any, necessary to transfer title to such investment to
the Trustee or its nominee. The Trustee shall have no responsibility or
liability with respect to the investment directions of the Servicer, the Special
Servicer, any Borrower or Manager or any losses resulting therefrom, whether
from Permitted Investments or otherwise. The Servicer shall have no
responsibility or liability with respect to the investment directions of the
Special Servicer, any Borrower or Manager or any losses resulting therefrom,
whether from Permitted Investments or otherwise. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Servicer (or the Special Servicer) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to
the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder
promptly upon determination by the Servicer (or the
Special Servicer) that such Permitted Investment
would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the
related Investment Account.
(b) All income and gain realized from investment of funds
deposited in any Investment Account shall be for the benefit of the Servicer
(except with respect to the investment of funds deposited in (i) any Borrower
Account, which shall be for the benefit of the related Borrower to the extent
required under the Mortgage Loan or Loan Pair or applicable law or (ii) any REO
Account, which shall be for the benefit of the Special Servicer) and, if held in
the Collection Account, the Interest Reserve Account, any Excess Liquidation
Proceeds Account or REO Account shall be subject to withdrawal by the Servicer
or the Special Servicer, as applicable, in accordance with Section 3.06 or
Section 3.17(b), as applicable. The Servicer, or with respect to any REO
Account, the Special Servicer, shall deposit from its own funds into the
Collection Account, the Interest Reserve Account, any Excess Liquidation
Proceeds Account or any REO Account, as applicable, the amount of any loss
incurred in respect of any such Permitted Investment immediately upon
realization of such loss; provided, however, that the Servicer or Special
Servicer, as applicable, may reduce the amount of such payment to the extent it
forgoes any investment income in such Investment Account otherwise payable to
it. The Servicer shall also deposit from its own funds in any Borrower Account
immediately upon realization of such loss the amount of any loss incurred in
respect of Permitted Investments, except to the extent that amounts are invested
at the direction of or for the benefit of the Borrower under the terms of the
Mortgage Loan or Loan Pair or applicable law.
(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 upon the request of Holders of
Certificates representing greater than 50% of the Percentage Interests of any
Class or an affected Companion Holder shall, take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. In the event the Trustee takes any
such action, the Trust Fund or the Companion Holder requesting such action shall
pay or reimburse the Trustee for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in connection
therewith. In the event that the Trustee does not take any such action, the
Servicer may take such action at its own cost and expense.
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage. (a) The Servicer on behalf of the Trustee and
if a Loan Pair is involved, on behalf of the related Companion Holder, as
mortgagee, shall cause the related Borrower to maintain, to the extent required
by each Mortgage Loan and Companion Loan (other than REO Loans), and if the
Borrower does not so maintain, shall itself maintain (paid as a Property
Advance, and subject to the provisions of this Agreement concerning
Nonrecoverable Advances) to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates, (i) fire
and hazard insurance with extended coverage on each related Mortgaged Property
in an amount which is at least equal to the lesser of (A) one hundred percent
(100%) of the then "full replacement cost" of the improvements and equipment
(excluding foundations, footings and excavation costs), without deduction for
physical depreciation, and (B) the outstanding principal balance of the related
Mortgage Loan or Loan Pair, or such greater amount as is necessary to prevent
any reduction in such policy by reason of the application of co-insurance and to
prevent the Trustee thereunder from being deemed a co-insurer, (ii) insurance
providing coverage against at least 12 months (or such longer period or with
such extended period endorsement as provided in the related Mortgage or other
Loan Document) of business interruptions (or in the case of an REO Property at
least 24 months) and (iii) such other insurance as is required in the related
Mortgage Loan or Companion Loan and customarily obtained at commercially
reasonable rates; provided that, if and to the extent that a Mortgage Loan or
Companion Loan so permits, the related Borrower or the Servicer as described
above shall be required to exercise its best efforts to obtain the required
insurance coverage from a Qualified Insurer. The Special Servicer shall maintain
fire and hazard insurance with extended coverage on each REO Property (subject
to the provisions of this Agreement concerning Nonrecoverable Advances) as
described above. If the Special Servicer does not maintain the insurance
described in the preceding sentence or the required flood insurance described
below, the Servicer shall, as soon as practicable after receipt of notice of
such failure, maintain such insurance, provided that, in each such case, such
obligation will be subject to the provisions of this Agreement concerning
Nonrecoverable Advances. The Special Servicer shall maintain, with respect to
each REO Property (i) public liability insurance providing such coverage against
such risks as the Special Servicer determines, consistent with the related
Mortgage and the Servicing Standard, to be in the best interests of the Trust
Fund and with respect to any Loan Pair, the related Companion Holder, as a
collective whole, (ii) insurance providing coverage against 24 months of
business interruptions and (iii) such other insurance as is required pursuant to
the terms of the related Mortgage Loan or Loan Pair. All insurance for an REO
Property shall be from a Qualified Insurer. Any amounts collected by the
Servicer or the Special Servicer under any such policies (other than amounts
required to be applied to the restoration or repair of the related Mortgaged
Property or amounts to be released to the Borrower in accordance with the terms
of the related Mortgage) shall be deposited into the Collection Account pursuant
to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any cost
incurred by the Servicer or Special Servicer in maintaining any such insurance
shall not, for the purpose of calculating distributions to Certificateholders or
Companion Holders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Loan Pair
so permit. It is understood and agreed that no other additional insurance other
than flood insurance or earthquake insurance (subject to the conditions set
forth below) is to be required of any Borrower or to be maintained by the
Servicer other than pursuant to the terms of the related Mortgage and pursuant
to such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance.
If the improvements on the Mortgaged Property (other than an REO
Property) are located in a federally designated special flood hazard area, the
Servicer will use its best efforts to cause the related Borrower to maintain, to
the extent required by each Mortgage Loan or Loan Pair, and if the related
Borrower does not so maintain, will itself obtain (subject to the provisions of
this Agreement concerning Nonrecoverable Advances) flood insurance in respect
thereof. Such flood insurance shall be in an amount equal to the lesser of (i)
the unpaid principal balance of the related Mortgage Loan or Loan Pair, (ii) the
maximum amount of such insurance required by the terms of the related Mortgage
and as is available for the related property under the National Flood Insurance
Act of 1968, as amended, if available and (iii) 100% of the replacement cost of
the improvements located in the special flood hazard area on the related
Mortgaged Property, except to the extent that self-insurance is permitted under
the related Mortgage Loan or Loan Pair. If an REO Property (i) is located in an
area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards or (ii) is related to a Mortgage Loan or
Loan Pair pursuant to which earthquake insurance was in place at the time of
origination and continues to be available at commercially reasonable rates, the
Special Servicer will obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) flood insurance and/or earthquake insurance
in respect thereof providing substantially the same coverage as described in the
preceding sentences or, with respect to earthquake insurance, in the amount
required by the Mortgage Loan or Loan Pair or, if not specified, in place at
origination. If at any time during the term of this Agreement a recovery under a
flood or fire and hazard insurance policy in respect of an REO Property is not
available but would have been available if such insurance were maintained
thereon in accordance with the standards applied to Mortgaged Properties
described herein, the Special Servicer shall (subject to the provisions of this
Agreement concerning Nonrecoverable Advances) either (i) immediately deposit
into the Collection Account from its own funds the amount that would have been
recovered or (ii) apply to the restoration and repair of the property from its
own funds the amount that would have been recovered, if such application would
be consistent with the Servicing Standard; provided, however, that the Special
Servicer shall not be responsible for any shortfall in insurance proceeds
resulting from an insurer's refusal or inability to pay a claim.
In the case of any insurance otherwise required to be maintained
pursuant to this Section that is not being so maintained because the Servicer or
the Special Servicer, as applicable, has determined that it is not available at
commercially reasonable rates, the Servicer or the Special Servicer, as
applicable, shall deliver an Officers' Certificate to the Trustee, the Bond
Administrator, each Rating Agency, the Directing Certificateholder and the
related Companion Holder (or Operating Advisor acting on its behalf) which
details the steps that were taken in seeking such insurance and the factors
which led to the determination that such insurance was not so available.
Costs to the Servicer or the Special Servicer of maintaining
insurance policies pursuant to this Section 3.08 shall be paid by the Servicer
or the Special Servicer, as applicable, as a Property Advance and shall be
reimbursable to the Servicer or the Special Servicer, with interest at the
Advance Rate, which reimbursement shall be effected under Section 3.06(d)(ii),
Section 3.06(d)(iii) and Section 3.06(d)(vii) and Section 3.06(e)(ii), Section
3.06(e)(iii) and Section 3.06(e)(vii), if applicable.
The Servicer (or the Special Servicer, with respect to the
Specially Serviced Loans) agrees to prepare and present, on behalf of itself,
the Trustee and the Certificateholders and the related Companion Holders, claims
under each related insurance policy maintained pursuant to this Section 3.08(a)
in a timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or to permit recovery
thereunder.
All insurance policies required hereunder shall name the Trustee
or the Servicer or the Special Servicer, on behalf of the Trustee and with
respect to a Loan Pair, the related Companion Holder, as the mortgagee, as loss
payee.
In the case of the Mortgage Loans identified on the Mortgage Loan
Schedule as Loan Nos. 72, 94, 104 and 105, the Servicer shall review the terms
and conditions of the environmental insurance policies obtained from an
affiliate of American International Group, Inc. with respect to such Mortgage
Loans and shall submit any claims under such policies in accordance with the
requirements contained in such policies.
(b) (I) If the Servicer or the Special Servicer, as
applicable, obtains and maintains a blanket or mortgage impairment insurance
policy insuring against fire and hazard losses on all of the Mortgaged
Properties (other than REO Properties) as to which the related Borrower has not
maintained insurance required by the related Mortgage Loan or Loan Pair or on
all of the REO Properties, as the case may be, it shall conclusively be deemed
to have satisfied its respective obligations concerning the maintenance of
insurance coverage set forth in Section 3.08(a). Any such blanket insurance
policy shall be maintained with a Qualified Insurer. A blanket insurance policy
may contain a deductible clause, in which case the Servicer or the Special
Servicer, as applicable, shall, in the event that (i) there shall not have been
maintained on the related Mortgaged Property a policy otherwise complying with
the provisions of Section 3.08(a), and (ii) there shall have been one or more
losses that would have been covered by such a policy had it been maintained,
immediately deposit into the Collection Account from its own funds the amount
not otherwise payable under the blanket policy because of such deductible clause
to the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan or Loan Pair, or, in the absence of any
such deductible limitation, the deductible limitation that is consistent with
the Servicing Standard. In connection with its activities as Servicer or the
Special Servicer hereunder, as applicable, the Servicer or the Special Servicer,
respectively, agrees to prepare and present, on behalf of itself, the Trustee,
Certificateholders and if a Loan Pair is involved, the related Companion Holder,
claims under any such blanket policy which it maintains in a timely fashion in
accordance with the terms of such policy and to take such reasonable steps as
are necessary to receive payment or permit recovery thereunder.
(II) If the Servicer or the Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by a master force
placed insurance policy, such policy shall be issued by a Qualified Insurer and
provide no less coverage in scope and amount for such Mortgaged Property or REO
Property than the insurance required to be maintained pursuant to Section
3.08(a) in which case the Servicer or Special Servicer shall conclusively be
deemed to have satisfied its respective obligations to maintain insurance
pursuant to Section 3.08(a). Such policy may contain a deductible clause, in
which case the Servicer or the Special Servicer, as applicable, shall, in the
event that (i) there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions of
Section 3.08(a), and (ii) there shall have been one or more losses that would
have been covered by such a policy had it been maintained, immediately deposit
into the Collection Account from its own funds the amount not otherwise payable
under such policy because of such deductible to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan or Loan Pair, or, in the absence of any such deductible
limitation, the deductible limitation that is consistent with the Servicing
Standard.
(c) The Servicer and the Special Servicer shall maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer and the Special Servicer each shall be
deemed to have complied with this provision if one of its respective Affiliates
has such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Servicer and the Special Servicer,
as applicable. In addition, the Servicer and the Special Servicer shall keep in
force during the term of this Agreement a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations to service the Mortgage Loans and
Companion Loans hereunder in the form and amount that would meet the servicing
requirements of prudent institutional commercial mortgage lenders and loan
servicers with the Trustee and if a Loan Pair is involved, the related Companion
Holder (with respect to its Companion Loan) named as loss payee (as their
interests may appear). The Servicer shall cause each and every sub-servicer for
it to maintain, or cause to be maintained by any agent or contractor servicing
any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors
and omissions insurance policy that satisfy the requirements for the fidelity
bond and the errors and omissions policy to be maintained by the Servicer
pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and
omissions insurance obtained under this Section 3.08(c) shall be issued by a
Qualified Insurer.
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions. (a) If any Mortgage Loan or Loan Pair
contains a provision in the nature of a "due-on-sale" clause, which by its
terms:
(i) provides that such Mortgage Loan or Loan Pair shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Mortgage Loan or Loan Pair may not be
assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then (subject to the rights of the Directing Certificateholder and if a Loan
Pair is involved, the related Companion Holder (or Operating Advisor acting on
its behalf)), for so long as such Mortgage Loan is included in the Trust Fund or
is a Companion Loan, the Servicer or the Special Servicer, as applicable, on
behalf of the Trust Fund (or the related Companion Holder) shall not be required
to enforce such due-on-sale clause and in connection therewith shall not be
required to (x) accelerate payments thereon or (y) withhold its consent to such
an assumption if (x) such provision is not exercisable under applicable law or
such exercise is reasonably likely to result in meritorious legal action by the
Borrower or (y) the Servicer or the Special Servicer, as applicable, determines,
in accordance with the Servicing Standard, that granting such consent would be
likely to result in a greater recovery, on a present value basis (discounting at
the related Mortgage Rate or, in the case of a Loan Pair, at the weighted
average of the Mortgage Rates for such Loan Pair) than would enforcement of such
clause. If the Servicer or the Special Servicer, as applicable, determines that
granting of such consent would likely result in a greater recovery or such
provision is not legally enforceable, the Servicer or the Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan or Companion Loan and substitute the new Borrower as obligor
thereon, provided, that (a) the credit status of the prospective new Borrower is
in compliance with the Servicer's or Special Servicer's regular commercial
mortgage origination or servicing standards and criteria (as evidenced in
writing by the Servicer or Special Servicer) and the terms of the related
Mortgage and (b)(i) as to any Mortgage Loan that represents more than 5% of the
then-current aggregate Stated Principal Balance of the Mortgage Loans (taking
into account for the purposes of this calculation (A) any mortgage loan with
which it is cross-collateralized and (B) in the case of any such Mortgage Loan
with respect to which the related Borrower or its Affiliate is a Borrower with
respect to one or more other Mortgage Loans or a Companion Loan, such other
Mortgage Loans or Companion Loan) (as verified by the Bond Administrator), the
Servicer or, with respect to Specially Serviced Loans, the Special Servicer, has
received written confirmation from S&P and Fitch, and (ii) so long as any
Certificate is then rated by Fitch, as to any Mortgage Loan that is one of the
ten largest Mortgage Loans in the Trust Fund (based on its then unpaid principal
balance), the Servicer or, with respect to a Specially Serviced Loan, the
Special Servicer, has received written confirmation from Fitch that such
assumption or substitution would not, in and of itself, cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates. In connection with each such assumption or substitution entered
into by the Special Servicer, the Special Servicer shall give prior notice
thereof to the Servicer. The Servicer or the Special Servicer, as applicable,
shall notify the Trustee, the Bond Administrator and if a Loan Pair is involved,
the related Companion Holder that any such assumption or substitution agreement
has been completed by forwarding to the Custodian, the Bond Administrator and
such Companion Holder (with a copy to the Servicer, if applicable) the original
copy of such agreement, which copies shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part thereof.
The Servicer or the Special Servicer may not approve an assumption or
substitution without requiring the related mortgagee to pay any fees owed to the
Rating Agencies associated with the approval of such assumption or substitution
unless the related Mortgage Loan or Companion Loan expressly prohibits the
Servicer or Special Servicer from requiring such payment. The Special Servicer
shall have the right to consent (which consent shall not be unreasonably
withheld) to any assumption of a Mortgage Loan or Companion Loan that is not a
Specially Serviced Loan; provided, however, that the Special Servicer is
required to obtain the consent of the Directing Certificateholders or the
related Companion Holder (or Operating Advisor acting on its behalf), as
applicable, to any such assumption, in each case, as described in Section 3.27
or Section 3.31 hereof. If the Special Servicer shall fail to either consent or
deny its consent to any assumption of a Mortgage Loan or Companion Loan proposed
by the Servicer within fifteen Business Days of such proposal, then the
assumption shall be deemed to be approved. Subject to the terms of the related
Loan Documents, no assumption of a Cross-Collateralized Loan shall be made
without the assumption of all other Mortgage Loans making up the related
Cross-Collateralized Group.
(b) If any Mortgage Loan or Companion Loan contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation
of any lien or other encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the
creation of any such lien or other encumbrance on the related Mortgaged
Property,
then the Servicer or Special Servicer, as applicable, on behalf of the Trust
Fund and in the case of a Loan Pair, the related Companion Holder, as
applicable, shall not be required to enforce such due-on-encumbrance clause and
in connection therewith will not be required to (i) accelerate the payments on
the related Mortgage Loan or Companion Loan or (ii) withhold its consent to such
lien or encumbrance, if the Servicer or Special Servicer, as applicable, (x)
determines, in accordance with the Servicing Standard, that such consent would
be in the best interests of the Trust Fund and in the case of a Loan Pair, the
related Companion Holder, as a collective whole, and (y) as to any Mortgage
Loan, receives prior written confirmation from each Rating Agency that 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;
provided, that in the case of Fitch, such confirmation shall only be required
with respect to any Mortgage Loan that represents more than 5% of the
then-current aggregate Stated Principal Balance of the Mortgage Loans or is one
of the ten largest Mortgage Loans in the Trust Fund (based on its unpaid
principal balance). The Special Servicer shall have the right to consent to any
waiver of a due-on-encumbrance clause with respect to any Mortgage Loan or
Companion Loan, as applicable, that is not a Specially Serviced Loan; provided
that the Special Servicer shall obtain the consent of the Directing
Certificateholders or in the case of a Loan Pair, the related Companion Holder
(or Operating Advisor acting on its behalf), as applicable, to any such waiver
of a due-on-encumbrance clause, to the extent described in Section 3.27 or
Section 3.31 hereof.
(c) Nothing in this Section 3.09 shall constitute a waiver of
the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan or Companion Loan, any sale or other transfer of
the related Mortgaged Property or the creation of any lien or other encumbrance
with respect to such Mortgaged Property.
(d) In connection with the taking of, or the failure to take,
any action pursuant to this Section 3.09, neither the Servicer nor the Special
Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or Companion
Loan or the related Note, other than pursuant to Section 3.30 or Section 3.31
hereof.
(e) With respect to any Mortgage Loan or Loan Pair which
permits release of Mortgaged Properties through defeasance:
(i) If such Mortgage Loan or Loan Pair requires that the Servicer
on behalf of the Trustee and in the case of a Loan Pair, the related
Companion Holder purchase the required U.S. government obligations, then
the Servicer shall purchase such obligations in accordance with the
terms of such Mortgage Loan or Loan Pair; provided, that the Servicer
shall not accept the amounts paid by the related Borrower to effect
defeasance until acceptable U.S. government obligations have been
identified.
(ii) If such Mortgage Loan or Loan Pair permits the assumption of
the obligations of the related Borrower by a successor mortgagor, then
prior to permitting such assumption and to the extent not inconsistent
with such Mortgage Loan or Loan Pair, the Servicer shall obtain written
confirmation from each Rating Agency that such assumption would not, in
and of itself, cause a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates.
(iii) To the extent not inconsistent with such Mortgage Loan or
Loan Pair, the Servicer shall require the related Borrower to provide an
Opinion of Counsel (which shall be an expense of the related Borrower)
to the effect that the Trustee has a first priority security interest in
the defeasance deposit and the U.S. government obligations and the
assignment thereof is valid and enforceable; such opinion, together with
any other certificates or documents to be required in connection with
such defeasance shall be in form and substance acceptable to each Rating
Agency and the related Companion Holder, if any.
(iv) To the extent not inconsistent with the Mortgage Loan or
Loan Pair, the Servicer shall require a certificate at the related
Borrower's expense from an Independent certified public accountant
certifying that the U.S. government obligations comply with the
requirements of the related Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged Properties to
the extent not inconsistent with the related Mortgage Loan or Loan Pair,
the Servicer shall obtain written confirmation from each Rating Agency
that such release would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates; provided, that so long as any Certificates are then rated
by Fitch, confirmation from Fitch shall only be required if such
Mortgage Loan is one of the ten largest Mortgage Loans in the Trust Fund
(based on its then unpaid principal balance).
(vi) Prior to permitting release of any Mortgaged Property, if
the related Mortgage Loan so requires and provides for the related
Borrower to pay the cost thereof, the Servicer shall require an Opinion
of Counsel of the related Borrower to the effect that such release will
not cause any of the Upper-Tier REMIC, Lower-Tier REMIC or the
applicable Loan REMIC 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.
(vii) No defeasance shall occur prior to the second anniversary
of the Startup Day of the Lower-Tier REMIC or the related Loan REMIC, as
applicable.
(viii) The Bond Administrator shall at the expense of the related
Borrower (to the extent permitted by the related Loan Documents) hold
the U.S. government obligations as pledgee for the benefit of the
Certificateholders and in the case of a Loan Pair, the related Companion
Holder, and apply payments of principal and interest received on the
government obligations to the Collection Account in respect of the
defeased Mortgage Loan or Companion Loan according to the payment
schedule existing immediately prior to the defeasance.
(ix) The Servicer shall, in accordance with the Servicing
Standard, enforce provisions in the Mortgage Loans and Loan Pairs
requiring Borrowers to pay all reasonable expenses associated with a
defeasance.
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage
Loans. (a) Contemporaneously with the earliest of (i) the effective date of any
(A) modification of the Maturity Date, a Mortgage Rate, principal balance or
amortization terms of any Mortgage Loan or Companion Loan, or any other term of
a Mortgage Loan or Companion Loan, (B) extension of the Maturity Date of a
Mortgage Loan or Companion Loan as described below in Section 3.30, or (C)
consent to the release of any Mortgaged Property from the lien of the related
Mortgage other than pursuant to the terms of the related Mortgage Loan or
Companion Loan, (ii) the occurrence of any Appraisal Reduction Event, (iii) a
default in the payment of a Balloon Payment for which an extension is not
granted pursuant to Section 3.26(g), or (iv) the date on which the Special
Servicer, consistent with the Servicing Standard, orders an Updated Valuation,
the Special Servicer shall obtain an Updated Valuation (or a letter update for
an existing appraisal which is less than two years old), the cost of which shall
constitute a Property Advance; provided, however, that the Special Servicer
shall not be required to obtain an Updated Valuation pursuant to clauses (i)
through (iv) above with respect to any Mortgaged Property for which there exists
an appraisal or Small Loan Appraisal Estimate which is less than twelve months
old. For so long as such Mortgage Loan or Loan Pair is a Specially Serviced
Loan, the Special Servicer shall obtain letter updates to each Updated Valuation
annually and prior to the Special Servicer granting extensions beyond one year
or any subsequent extension after granting a one year extension with respect to
the same Mortgage Loan or Companion Loan. For so long as any Mortgage Loan is
included in the Trust Fund, the Special Servicer shall obtain a new Updated
Valuation with respect to an Updated Valuation which is more than two years old.
The Special Servicer shall send all such letter updates and Updated Valuations
to the Servicer and the Rating Agencies, the Directing Certificateholder and if
a Loan Pair is involved, the related Companion Holder (and any Operating Advisor
acting on its behalf).
(b) The Special Servicer shall monitor such Specially Serviced
Loan, evaluate whether the causes of the default can be corrected over a
reasonable period without significant impairment of the value of the related
Mortgaged Property, initiate corrective action in cooperation with the Borrower
if, in the Special Servicer's judgment (but subject, in the case of a Loan Pair,
to Section 3.31), cure is likely, and take such other actions (including without
limitation, negotiating and accepting a discounted payoff of a Mortgage Loan or
Companion Loan) as are consistent with the Servicing Standard and Section 3.31
hereof. If, in the Special Servicer's judgment, such corrective action has been
unsuccessful, no satisfactory arrangement can be made for collection of
delinquent payments, and the Specially Serviced Loan has not been released from
the Trust Fund (or, in the case of a Companion Loan, by the related Companion
Holder) pursuant to any provision hereof, and except as otherwise specifically
provided in Sections 3.09(a) and 3.09(b), the Special Servicer may, to the
extent consistent with the Asset Status Report and with the Servicing Standard
and Section 3.31 hereof, accelerate such Specially Serviced Loan and commence a
foreclosure or other acquisition with respect to the related Mortgaged Property
or Properties, provided, that the Special Servicer determines that such
acceleration and foreclosure are more likely to produce a greater recovery to
Certificateholders (or, if a Loan Pair is involved, are more likely to produce a
greater recovery to Certificateholders and the related Companion Holder, as a
collective whole) on a present value basis (discounting at the related Mortgage
Rate or, in the case of a Loan Pair, at the weighted average of the Mortgage
Rates for such Loan Pair) than would a waiver of such default or an extension or
modification in accordance with the provisions of Section 3.30 hereof. Subject
to Section 3.24(b), the Special Servicer shall pay the costs and expenses in any
such proceedings as an Advance unless the Special Servicer determines, in its
good faith judgment, that such Property Advance would constitute a
Nonrecoverable Advance. The Trustee shall be entitled to conclusively rely upon
any determination of the Servicer or the Special Servicer, as applicable, that a
Property Advance, if made, would constitute a Nonrecoverable Advance. If the
Special Servicer does not make such Advance in violation of the second preceding
sentence, the Servicer shall make such Advance and if the Servicer does not make
any such Advance, the Trustee shall make such Advance, unless in each case, the
Special Servicer, the Servicer or the Trustee determines that such Advance would
be a Nonrecoverable Advance. The Servicer, the Special Servicer and the Trustee,
as applicable, shall be entitled to reimbursement of Property Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06(d)(ii), Section 3.06(d)(iii), Section
3.06(d)(vii), Section 3.06(e)(ii), Section 3.06(e)(iii) and Section
3.06(e)(vii).
(c) If the Special Servicer elects to proceed with a
non-judicial foreclosure in accordance with the laws of the state where the
Mortgaged Property is located, the Special Servicer shall not be required to
pursue a deficiency judgment against the related Borrower or any other liable
party if the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officers'
Certificate delivered to the Bond Administrator, the Trustee and if a Loan Pair
is involved, the related Companion Holder.
(d) In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee (which
shall not include the Special Servicer) or a separate Trustee or co-Trustee on
behalf of the Trustee as holder of the Lower-Tier Regular Interests, the related
Loan REMIC Residual Interest, the related Loan REMIC Regular Interest and
Certificateholders (and in the case of a Mortgaged Property securing a Loan
Pair, the related Companion Holder). Notwithstanding any such acquisition of
title and cancellation of the related Mortgage Loan or Loan Pair, such Mortgage
Loan or Loan Pair shall (except for purposes of Section 9.01) be considered to
be an REO Loan until such time as the related REO Property shall be sold by the
Trust Fund (and in the case of a Mortgaged Property securing a Loan Pair, the
related Companion Holder) and shall be reduced only by collections net of
expenses. Consistent with the foregoing, for purposes of all calculations
hereunder, so long as such Mortgage Loan or Companion Loan shall be considered
to be an outstanding Mortgage Loan or Companion Loan:
(i) it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Note shall have been discharged,
such Note and, for purposes of determining the Stated Principal Balance
thereof, the related amortization schedule in effect at the time of any
such acquisition of title shall remain in effect; and
(ii) subject to Section 1.02(b), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable under
the related Note(s) in accordance with the terms of such Note(s). In
the absence of such terms, Net REO Proceeds shall be deemed to have
been received first, in payment of the accrued interest (not including
Excess Interest) that remained unpaid on the date that the related REO
Property was acquired by the Trust Fund; second, in respect of the
delinquent principal installments that remained unpaid on such date;
and thereafter, Net REO Proceeds received in any month shall be applied
to the payment of installments of principal and accrued interest on
such Mortgage Loan or Loan Pair deemed to be due and payable in
accordance with the terms of such Note(s) and such amortization
schedule until such principal has been paid in full and then to Excess
Interest and other amounts due under such Mortgage Loan. If such Net
REO Proceeds exceed the Monthly Payment then payable, the excess shall
be treated as a Principal Prepayment received in respect of such
Mortgage Loan or Loan Pair.
(e) Notwithstanding any provision herein to the contrary, the
Special Servicer shall not acquire for the benefit of the Trust Fund any
personal property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(l) of the Code) so acquired by the
Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the Lower-Tier
REMIC or a Loan REMIC, as applicable) to the effect that the holding of
such personal property by the Lower-Tier REMIC or related Loan REMIC
will not cause the imposition of a tax on the related Loan REMIC, the
Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the related Loan REMIC, the Lower-Tier REMIC or Upper-Tier REMIC
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(f) Notwithstanding any provision to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to any direct or indirect partnership interest or other equity interest in
any Borrower pledged pursuant to any pledge agreement unless the Special
Servicer shall have requested and received an Opinion of Counsel (which opinion
shall be an expense of the Trust Fund) to the effect that the holding of such
partnership interest or other equity interest by the Trust Fund will not cause
the imposition of a tax on the related Loan REMIC, the Lower-Tier REMIC or
Upper-Tier REMIC under the REMIC Provisions or cause either Loan REMIC, the
Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in
this Agreement, the Special Servicer shall not, on behalf of the Trust Fund (and
in the case of a Mortgaged Property securing a Loan Pair, the related Companion
Holder), obtain title to a Mortgaged Property as a result of or in lieu of
foreclosure or otherwise, obtain title to any direct or indirect partnership
interest in any Borrower pledged pursuant to a pledge agreement and thereby be
the beneficial owner of a Mortgaged Property, and shall not otherwise acquire
possession of, or take any other action with respect to, any Mortgaged Property
if, as a result of any such action, the Trustee, for the Trust Fund, the
Certificateholders or if a Loan Pair is involved, the related Companion Holder,
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
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an environmental
consultant, that it would be in the best economic interest of the Trust
Fund (or, if a Loan Pair is involved, the best economic interest of the
Trust Fund and the related Companion Holder, as a collective whole) to
take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, and
(ii) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any currently effective
federal, state or local law or regulation, or that, if any such
Hazardous Materials are present for which such action could be
required, after consultation with an environmental consultant, it would
be in the best economic interest of the Trust Fund (or, if a Loan Pair
is involved, the best economic interest of the Trust Fund and the
related Companion Holder, as a collective whole) to take such actions
with respect to the affected Mortgaged Property.
In the event that the environmental assessment first obtained by
the Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders and, if a Loan Pair is involved, the related Companion
Holder, as a collective whole. Any such tests shall be deemed part of the
environmental assessment obtained by the Special Servicer for purposes of this
Section 3.10.
(h) The environmental assessment contemplated by Section
3.10(g) shall be prepared within three months (or as soon thereafter as
practicable) of the determination that such assessment is required by any
Independent Person who regularly conducts environmental audits for purchasers of
commercial property where the Mortgaged Property is located, as determined by
the Special Servicer in a manner consistent with the Servicing Standard. The
Servicer or the Special Servicer, as applicable, shall advance the cost of
preparation of such environmental assessments as a Property Advance unless the
Servicer or the Special Servicer, as applicable, determines, in its good faith
judgment, that such Property Advance would be a Nonrecoverable Advance. The
Servicer or the Special Servicer, as applicable, shall be entitled to
reimbursement of Property Advances (with interest at the Advance Rate) made
pursuant to the preceding sentence to the extent permitted by Section 3.06(d)
and Section 3.06(e).
(i) If the Special Servicer determines pursuant to Section
3.10(g)(i) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund (or, if a Loan Pair is involved, the best economic interest of the Trust
Fund and the related Companion Holder, as a collective whole) to take such
actions as are necessary to bring such Mortgaged Property in compliance
therewith, or if the Special Servicer determines pursuant to Section 3.10(g)(ii)
that the circumstances referred to therein relating to Hazardous Materials are
present but that it is in the best economic interest of the Trust Fund (or, if a
Loan Pair is involved, the best economic interest of the Trust Fund and the
related Companion Holder, as a collective whole) to take such action with
respect to the containment, clean-up or remediation of Hazardous Materials
affecting such Mortgaged Property as is required by law or regulation, the
Special Servicer shall take such action as it deems to be in the best economic
interest of the Trust Fund (or, if a Loan Pair is involved, the best economic
interest of the Trust Fund and the related Companion Holder, as a collective
whole), but only if the Bond Administrator has mailed notice to the Holders of
the Regular Certificates and if a Loan Pair is involved, the related Companion
Holder (and any Operating Advisor acting on its behalf) of such proposed action,
which notice shall be prepared by the Special Servicer, and only if the Bond
Administrator does not receive, within 30 days of such notification,
instructions from the Holders of greater than 50% of the aggregate Voting Rights
of such Classes and the related Companion Holder or Operating Advisor, if
applicable, directing the Special Servicer not to take such action.
Notwithstanding the foregoing, if the Special Servicer reasonably determines
that it is likely that within such 30-day period irreparable environmental harm
to such Mortgage Property would result from the presence of such Hazardous
Materials and provides a prior written statement to the Bond Administrator
setting forth the basis for such determination, then (subject to Section 3.31
hereof) the Special Servicer may take such action to remedy such condition as
may be consistent with the Servicing Standard. None of the Trustee, the Bond
Administrator, the Servicer or the Special Servicer shall be obligated to take
any action or not take any action pursuant to this Section 3.10(i) at the
direction of the Certificateholders or any Companion Holder unless the
Certificateholders or such Companion Holder agree to indemnify the Trustee, the
Bond Administrator, the Servicer and the Special Servicer with respect to such
action or inaction. The Servicer or the Special Servicer, as applicable, shall
advance the cost of any such compliance, containment, clean-up or remediation as
a Property Advance unless the Servicer or the Special Servicer, as applicable,
determines, in its good faith judgment, that such Advance would constitute a
Nonrecoverable Advance.
(j) The Special Servicer shall report to the IRS and to the
related Borrower, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned or
foreclosed or regarding any cancellation of indebtedness with respect to any
Mortgage Loan or Loan Pair. The Special Servicer shall deliver a copy of any
such report to the Trustee, the Bond Administrator and to the Servicer and if a
Loan Pair is involved, the related Companion Holder.
(k) The costs of any Updated Valuation obtained pursuant to
this Section 3.10 shall be paid by the Servicer or the Special Servicer, as
applicable, as a Property Advance and shall be reimbursable from the Collection
Account.
Section 3.11 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan or Loan Pair, or the receipt by
the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes, the Servicer shall immediately notify the
Bond Administrator or the Custodian by a certification (which certification
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 3.05 have been or will be so
deposited) of a Servicing Officer and shall request delivery to it of the
related Mortgage File. Any expense incurred in connection with any instrument of
satisfaction or deed of reconveyance that is not paid by the related Borrower
shall be chargeable to the Trust Fund (or, in the case of a Loan Pair, pro rata
to the Trust Fund and the related Companion Holder). The Servicer agrees to
enforce any provision in the relevant Loan Documents that require the Borrower
to pay such amounts.
From time to time upon request of the Servicer or Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Custodian shall promptly release the Mortgage File (or any portion thereof)
designated in such Request for Release to the Servicer or Special Servicer, as
applicable. Upon return of the foregoing to the Custodian, or in the event of a
liquidation or conversion of the Mortgage Loan into an REO Property, or in the
event of a substitution of a Mortgage Loan pursuant to Section 2.03, or receipt
by the Trustee, the Bond Administrator and the Custodian of a certificate of a
Servicing Officer stating that such Mortgaged Property was liquidated and that
all amounts received or to be received in connection with such liquidation which
are required to be deposited into the Collection Account have been so deposited,
or that such Mortgage Loan or Loan Pair has become an REO Property, or that the
Servicer has received a Qualifying Substitute Mortgage Loan and the applicable
Substitution Shortfall Amount, the Custodian shall deliver a copy of the Request
for Release to the Servicer or Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Special Servicer any court pleadings, requests
for Trustee's sale or other documents prepared by the Special Servicer, its
agents or attorneys, necessary to the foreclosure or Trustee's sale in respect
of a Mortgaged Property or to any legal action brought to obtain judgment
against any Borrower on the 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. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or Trustee's sale.
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation. (a) As compensation for its activities hereunder, the Servicer
shall be entitled with respect to each Mortgage Loan to the Servicing Fee and
with respect to each Companion Loan, the Companion Servicing Fee, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Sections 3.06(d)(iv) and 3.06(e)(iv), respectively. The Servicing Fee with
respect to the Fairgrounds Square Loan and the Towne Square Apartments Loan
shall be an expense of the Lower-Tier REMIC with respect to the related Loan
REMIC Regular Interest. The Servicer's rights to the Servicing Fee and the
Companion 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. In addition, the Servicer shall be entitled to
receive, as additional Servicing Compensation, to the extent permitted by
applicable law and the related Mortgage Loans, (i) any late payment charges
collected by the Servicer during a Collection Period on any Performing Mortgage
Loan (other than Default Interest) remaining after application thereof during
such Collection Period to pay the Advance Interest Amount relating to such
Performing Mortgage Loan (or, in the event a Loan Pair is involved, such Loan
Pair) for such Collection Period and any unreimbursed Additional Trust Fund
Expenses incurred during or prior to such Collection Period, (ii) any loan
service transaction fees, demand fees, beneficiary statement charges or similar
items and (iii) 50% of any Assumption Fees, due-on-sale fees, due-on-encumbrance
fees, loan modification fees, extension fees and any similar items relating to
any Performing Mortgage Loan for as long as the Mortgage Loan is not a Specially
Serviced Loan but excluding any Prepayment Premiums, in each case to the extent
received and not required to be deposited or retained in the Collection Account
pursuant to Section 3.05; provided, however, that the Servicer shall not be
entitled to apply or retain as additional compensation, any late payment charges
with respect to any Mortgage Loan or Companion Loan with respect to which a
default or event of default thereunder has occurred and is continuing unless and
until such default or event of default has been cured and all delinquent amounts
(including any Default Interest not waived) due with respect to such Mortgage
Loan and/or Companion Loan have been paid. The Servicer shall also be entitled
pursuant to, and to the extent provided in, Sections 3.06(d)(iv) and 3.07(b) to
withdraw from the Collection Account and to receive from the Interest Reserve
Account and any Borrower Accounts (to the extent not payable to the related
Borrower under the Mortgage Loan or applicable law), Net Prepayment Interest
Excess, if any, and any interest or other income earned on deposits therein.
Notwithstanding the foregoing, the aggregate Master Servicing Fee attributable
to the Mortgage Loans during the related Collection Period and due to the
Servicer on any Distribution Date shall be reduced by the amount of any Servicer
Prepayment Interest Shortfalls.
As compensation for their activities hereunder on each
Distribution Date, (i) the Trustee shall be entitled with respect to each
Mortgage Loan to a portion of the Trustee Fee, which shall be payable from
amounts on deposit in the Lower-Tier Distribution Account, and (ii) the Bond
Administrator shall be entitled, with respect to each Mortgage Loan, to the
portion of the Trustee Fee consisting of the Bond Administrator Fee, which shall
be payable from amounts on deposit in the Lower-Tier Distribution Account. The
Trustee Fee with respect to the Fairgrounds Square Loan and the Towne Square
Apartments Loan shall be an expense of the Lower-Tier REMIC with respect to the
related Loan REMIC Regular Interest. The Bond Administrator shall pay the
routine fees of the Certificate Registrar, the Paying Agent, the Custodian and
the Authenticating Agent. The Trustee's, the Bond Administrator's and the
Companion Paying Agent's rights to the Trustee Fee, the Bond Administrator Fee
and the Companion Agent Fee, respectively, may not be transferred in whole or in
part except in connection with the transfer of all of their respective
responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder,
including all fees of any sub-servicers retained by it. Except as otherwise
provided herein, the Trustee shall pay all expenses incurred by it in connection
with its activities hereunder.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially Serviced Loan and REO
Loan to the Special Servicing Compensation, which shall be payable from amounts
on deposit in the Collection Account as set forth in Sections 3.06(d)(iv) and
3.06(e)(iv). The Special Servicer's rights to 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.
In addition, the Special Servicer shall be entitled to receive, as Special
Servicing Compensation, to the extent permitted by applicable law and the
related Loan Documents, (i) any late payment charges (other than Default
Interest) collected by the Servicer during a Collection Period on any Specially
Serviced Loan remaining after application thereof during such Collection Period
to pay the Advance Interest Amount relating to such Specially Serviced Loan (or,
in the event a Loan Pair is involved, such Loan Pair) for such Collection Period
and any unreimbursed Additional Trust Fund Expenses incurred during or prior to
such Collection Period (but not NSF check fees and the like, which shall be paid
to the Servicer), (ii) 50% of any Assumption Fees, due-on-sale fees,
due-on-encumbrance fees, loan modification fees, extension fees, and other
similar fees relating to any Performing Mortgage Loan, excluding any Prepayment
Premiums, (iii) any interest or other income earned on deposits in the REO
Accounts, and (iv) 100% of any Assumption Fees, due-on-sale fees,
due-on-encumbrance fees, loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges and other similar
fees relating to any Specially Serviced Loan or REO Loan; provided, however,
that the Special Servicer shall not be entitled to apply or retain as additional
compensation, any late payment charges with respect to any Specially Serviced
Loan with respect to which a default or event of default thereunder has occurred
and is continuing unless and until such default or event of default has been
cured and all delinquent amounts (including any Default Interest not waived) due
with respect to such Mortgage Loan have been paid.
Except as otherwise provided herein, the Special Servicer shall
pay all expenses incurred by it in connection with its servicing activities
hereunder.
(c) In addition, a Workout Fee will be payable to the Special
Servicer with respect to each Mortgage Loan or Loan Pair that ceases to be a
Specially Serviced Loan pursuant to the definition thereof. As to each such
Mortgage Loan or Loan Pair, the Workout Fee will be payable out of each
collection of interest and principal (including scheduled payments, prepayments,
Balloon Payments and payments at maturity) received on such Mortgage Loan or
Loan Pair for so long as it remains a Corrected Mortgage Loan. The Workout Fee
with respect to any such Mortgage Loan or Loan Pair will cease to be payable if
such loan again becomes a Specially Serviced Loan or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee will become
payable if and when such Mortgage Loan or Loan Pair again ceases to be a
Specially Serviced Loan. If the Special Servicer is terminated (other than for
cause) or resigns with respect to any or all of its servicing duties, it shall
retain the right to receive any and all Workout Fees payable with respect to
Mortgage Loans or Loan Pairs that cease to be Specially Serviced Loans during
the period that it had responsibility for servicing Specially Serviced Loans and
that had ceased being Specially Serviced Loans at the time of such termination
or resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence.
A Liquidation Fee will be payable to the Special Servicer with
respect to each Specially Serviced Loan as to which the Special Servicer obtains
a full, partial or discounted payoff from the related Borrower and, except as
otherwise described below, with respect to any Specially Serviced Loan or REO
Property as to which the Special Servicer recovered any Liquidation Proceeds. As
to each such Specially Serviced Loan and REO Property, the Liquidation Fee will
be payable from the related payment or proceeds. 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 purchase of any
Specially Serviced Loan or REO Property by the Servicer, the Special Servicer, a
Mortgage Loan Seller, a Companion Holder or any holder of Certificates
evidencing a majority interest in the Controlling Class or the purchase of all
of the Mortgage Loans and REO Properties by the Servicer or the Depositor in
connection with the termination of the Trust Fund.
If however, Liquidation Proceeds are received with respect to any
Specially Serviced Loan to which 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.
(d) [Intentionally Left Blank].
(e) The Servicer, the Special Servicer, the Bond Administrator
and the Trustee shall be entitled to reimbursement from the Trust Fund (and
subject to Section 1.04, from the applicable Companion Holder or Companion
Holders) for the costs and expenses incurred by them in the performance of their
duties under this Agreement which are "unanticipated expenses incurred by the
REMIC" within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii).
Such expenses shall include, by way of example and not by way of limitation,
environmental assessments, Updated Appraisals and appraisals in connection with
foreclosure, the fees and expenses of any administrative or judicial proceeding
and expenses expressly identified as reimbursable in Section 3.06(d)(vii). All
such costs and expenses shall be treated as costs and expenses of the Lower-Tier
REMIC or the applicable Loan REMIC, and if not attributable to a specific
Mortgage Loan, shall be allocated among the Lower-Tier REMIC and the Loan REMICs
based on the Stated Principal Balances of the related Mortgage Loans.
(f) No provision of this Agreement or of the Certificates
shall require the Servicer, the Special Servicer, the Trustee or the Bond
Administrator to expend or risk their own funds or otherwise incur any financial
liability in the performance of any of their duties hereunder or thereunder, or
in the exercise of any of their rights or powers, if, in the good faith business
judgment of the Servicer, Special Servicer, Trustee or Bond Administrator, as
the case may be, repayment of such funds would not be ultimately recoverable
from late payments, Net Insurance Proceeds, Net Liquidation Proceeds and other
collections on or in respect of the Mortgage Loans, or from adequate indemnity
from other assets comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer, the Trustee or the Bond
Administrator receives a request or inquiry from a Borrower, any
Certificateholder, any Companion Holder or any other Person the response to
which would, in the Servicer's, the Special Servicer's, the Trustee's or the
Bond Administrator's good faith business judgment require the assistance of
Independent legal counsel or other consultant to the Servicer, the Special
Servicer, the Trustee or the Bond Administrator, the cost of which would not be
an expense of the Trust Fund and/or any Companion Holder hereunder, then the
Servicer, the Special Servicer, the Trustee or the Bond Administrator, as the
case may be, shall not be required to take any action in response to such
request or inquiry unless such Borrower, such Certificateholder, such Companion
Holder or such other Person, as applicable, makes arrangements for the payment
of the Servicer's, the Special Servicer's, the Trustee's or the Bond
Administrator's expenses associated with such counsel (including, without
limitation, posting an advance payment for such expenses) satisfactory to the
Servicer, the Special Servicer, the Trustee or the Bond Administrator, as the
case may be, in its sole discretion. Unless such arrangements have been made,
the Servicer, the Special Servicer, the Trustee or the Bond Administrator, as
the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
Section 3.13 Reports to the Bond Administrator; Collection
Account Statements. (a) The Servicer shall deliver to the Bond Administrator
and the Companion Paying Agent (and, upon request, to the Special Servicer), no
later than 3:00 p.m. Central time two Business Days prior to the Servicer
Remittance Date prior to each Distribution Date, the CMSA Loan Periodic Update
File with respect to the related Distribution Date (which shall include, without
limitation, the amount of Available Funds and, with respect to each Companion
Loan, the Available Companion Distribution Amount, for such related Collection
Period) including information therein that states the anticipated P&I Advances
for the related Distribution Date. The Servicer's responsibilities under this
Section 3.13(a) with respect to REO Loans shall be subject to the satisfaction
of the Special Servicer's obligations under Section 3.26. The Servicer shall by
11:00 a.m. Central time deliver to the Bond Administrator, and upon request, to
the Companion Paying Agent, on the Servicer Remittance Date information on the
Monthly Payments received after the Determination Date from the subservicer in a
Paid After Determination Date Report.
(b) For so long as the Servicer makes deposits into or credits
to and withdrawals or debits from the Collection Account, not later than fifteen
days after each Distribution Date, the Servicer shall forward to the Bond
Administrator and the Companion Paying Agent a statement prepared by the
Servicer setting forth the status of the Collection Account as of the close of
business on the last Business Day of the prior month and showing the aggregate
amount of deposits into and withdrawals from the Collection Account of each
category of deposit (or credit) specified in Section 3.05 and each category of
withdrawal (or debit) specified in Section 3.06 for the related Collection
Period, in each case for the Mortgage Loans (including allocations to the
Lower-Tier REMIC and the Grantor Trust) and the Companion Loans. The Trustee,
the Bond Administrator, the Companion Paying Agent and any Companion Holder and
their agents and attorneys may at any time during normal business hours, upon
reasonable notice, inspect and copy the books, records and accounts of the
Servicer solely relating to the Mortgage Loans or Loan Pairs and the performance
of its duties hereunder (and, in the case of a Companion Holder, relating solely
to the related Loan Pair).
(c) Beginning in November 2000, no later than 12:00 noon
Central time on each Servicer Remittance Date, the Servicer shall deliver or
cause to be delivered to the Bond Administrator the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the immediately preceding Determination
Date: (i) a Comparative Financial Status Report, (ii) a Delinquent Loan Status
Report; (iii) an Historical Liquidation Report; (iv) an Historical Loan
Modification Report; (v) an REO Status Report; and (vi) the remaining CMSA
Reports (excluding the CMSA Loan Periodic Update File and CMSA Setup File). Such
reports shall be presented in writing and on a computer readable medium
reasonably acceptable to the Bond Administrator. 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 at least four Business Days prior to the related Servicer Remittance
Date in the form required by Section 3.13(f) or shall be provided by means of
such reports so delivered by the Special Servicer to the Servicer in the form so
required. In the absence of manifest error, the Servicer shall be entitled to
conclusively rely upon, without investigation or inquiry, the information and
reports delivered to it by the Special Servicer, and the Bond Administrator
shall be entitled to conclusively rely upon the Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute, verify
or recalculate any of the amounts and other information stated therein.
(d) The Servicer shall deliver or cause to be delivered to the
Bond Administrator, the Underwriters and to any Rating Agency and if a Loan Pair
is involved, to the related Companion Holder, the following materials, in each
case to the extent that such materials or the information on which they are
based have been received by the Servicer:
(i) At least annually by June 30, beginning in June 2001, with
respect to each Mortgage Loan and REO Loan (to the extent prepared by
and received from the Special Servicer (in written format or in
electronic media) in the case of any Specially Serviced Loan or REO
Loan), an Operating Statement Analysis Report for the related Mortgaged
Property or REO Property as of the end of the preceding calendar year
(initially, year-end 2000), together with copies of the related
operating statements and rent rolls (but only to the extent the related
Borrower is required by the Mortgage to deliver, or otherwise agrees to
provide such information and, with respect to operating statements and
rent rolls for Specially Serviced Loans and REO Properties, only to the
extent requested by the Special Servicer) and for the current trailing
12 months, if available, or year-to-date. The Servicer shall use its
best reasonable efforts to obtain said annual and other periodic
operating statements and related rent rolls with respect to each of the
Mortgage Loans other than Specially Serviced Loans or REO Loans, which
efforts shall include a letter sent to the related Borrower (followed
up with telephone calls), requesting such annual and other periodic
operating statements and related rent rolls until they are received to
the extent such action is consistent with applicable law and the terms
of the Mortgage Loans. Upon receipt of such annual and other periodic
operating statements (including year-to-date statements) and related
rent rolls and the Servicer shall promptly update the Operating
Statement Analysis Report.
(ii) Within 60 days after receipt by the Servicer (or within 45
days of receipt by the Special Servicer in the case of a Specially
Serviced Loan or REO Property) of any annual year-end operating
statements with respect to any Mortgaged Property or REO Property (to
the extent prepared by and received from the Special Servicer in the
case of any Specially Serviced Loan or REO Property), an NOI Adjustment
Worksheet for such Mortgaged Property (with the annual year-end
operating statements attached thereto as an exhibit). The Servicer will
use the "Normalized" column from the NOI Adjustment Worksheet to update
the full year-end data on any Operating Statement Analysis Report and
will use any operating statements received with respect to any
Mortgaged Property (other than any Mortgaged Property which is REO
Property or constitutes security for a Specially Serviced Loan) to
update the Operating Statement Analysis Report for such Mortgaged
Property.
The Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property and REO Property (to the extent prepared by
and received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Loan). The
Operating Statement Analysis Report for each Mortgaged Property (other than any
such Mortgaged Property which is an REO Property or constitutes security for a
Specially Serviced Loan) is to be updated with trailing 12-month information, as
available (commencing with the quarter ending September 2000), or year-to-date
information until 12-month trailing information is available by the Servicer and
such updated report shall be delivered to the Bond Administrator within thirty
days after receipt by the Servicer of such updated trailing or year-to-date
operating statements and related rent rolls for such Mortgaged Property.
The Special Servicer will be required pursuant to Section 3.13(g)
to deliver to the Servicer the information required of it pursuant to this
Section 3.13(d) with respect to Specially Serviced Loans and REO Loans
commencing on June 30, 2001, in addition to within 45 days after its receipt of
any operating statement and related rent rolls for any related Mortgaged
Property or REO Property.
(e) No later than 12:00 noon Central time on the Servicer
Remittance Date, beginning in November, 2000, the Servicer shall prepare and
deliver to the Bond Administrator and the Special Servicer, a Watch List of all
Mortgage Loans or Loan Pairs that the Servicer has determined are in jeopardy of
becoming Specially Serviced Loans. For this purpose, Mortgage Loans or Loan
Pairs that are in jeopardy of becoming Specially Serviced Loans shall include,
without limitation: (i) Mortgage Loans or Loan Pairs having a current trailing
12 month or annual year end Debt Service Coverage Ratio that is 80% or less of
the Debt Service Coverage Ratio as of the Cut-off Date or having a current
trailing 12-month or annual year-end Debt Service Coverage Ratio that is less
than 1.10, (ii) Mortgage Loans or Loan Pairs 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 and
adversely affect the cash flow generated by such Mortgaged Property, (iii)
Mortgage Loans or Loan Pairs as to which the Servicer has actual knowledge of
material damage or waste at the related Mortgaged Property, (iv) Mortgage Loans
or Loan Pairs which have come to the Servicer's attention in the performance of
its duties under this Agreement (without any expansion of such duties by reason
hereof) that any tenant or tenants collectively occupying 25% or more of the
space in the related Mortgaged Property (A) has vacated or intends to vacate
such space (without being replaced by a comparable tenant and lease) or (B) has
declared or intends to declare bankruptcy; or (C) is or are within six (6)
months of its or their respective lease expiration; (v) Mortgage Loans or Loan
Pairs where it has come to the Servicer's attention that the related Borrower or
an affiliate of the related Borrower is the subject of bankruptcy of similar
proceeding; (vi) Mortgage Loans or Loan Pairs that are at least 30 days
delinquent in payment, and (vii) Mortgage Loans or Loan Pairs that are within 60
days of maturity. In addition, if any Loan Pair or Mortgage Loan or Companion
Loan included in a Loan Pair is affected as described in this subsection (e),
the Servicer shall also provide the related Companion Holder with notice
thereof.
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Servicer and the Special Servicer shall provide to each other and to the
Bond Administrator and if a Loan Pair is involved, any related Companion Holder,
written notice of any event that comes to their knowledge with respect to a
Mortgage Loan or REO Property that the Servicer or the Special Servicer,
respectively, determines, in accordance with Servicing Standards, would have a
material adverse effect on such Mortgage Loan or REO Property, which notice
shall include an explanation as to the reason for such material adverse effect.
(f) At least four Business Days prior to each Servicer
Remittance Date, the Special Servicer shall deliver, or cause to be delivered,
to the Servicer and, upon the request of any of the Trustee, the Bond
Administrator, the Depositor, the Controlling Class, any Companion Holder or any
Rating Agency, to 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 the Determination Date (or, upon the
reasonable request of the Servicer, data files in a form acceptable to the
Servicer): (i) a Delinquent Loan Status Report; (ii) an Historical Liquidation
Report; (iii) an Historical Loan Modification Report; (iv) an REO Status Report;
(v) Comparative Financial Status Reports; (vi) CMSA Loan Periodic Update File;
(vii) a CMSA Property File; and (viii) a CMSA Financial File. Such reports or
data shall be presented in writing and on a computer readable magnetic medium or
other electronic format acceptable to the Servicer.
(g) The Special Servicer shall deliver or cause to be
delivered to the Servicer and, upon the request of any of the Trustee, the Bond
Administrator, the Depositor, the Controlling Class, the related Companion
Holder, if applicable, or any Rating Agency, to such requesting party, without
charge, the following materials for Specially Serviced Mortgage Loans, in each
case to the extent that such materials or the information on which they are
based have been received by the Special Servicer:
(i) At least annually, on or before June 30th of each year,
commencing with June, 2001, with respect to each Specially Serviced
Loan and REO Loan, an Operating Statement Analysis Report for the
related Mortgaged Property or REO Property as of the end of the
preceding calendar year, together with copies of the operating
statements and rent rolls for the related Mortgaged Property or REO
Property as of the end of the preceding calendar year (but only to the
extent the related Borrower is required by the Mortgage to deliver, or
otherwise agrees to provide, such information and, with respect to
operating statements and rent rolls for Specially Serviced Loans and
REO Properties, only to the extent requested by the Special Servicer)
and for the current trailing 12 months, if available, or year-to-date.
The Special Servicer shall use its best reasonable efforts to obtain
said annual and other periodic operating statements and related rent
rolls with respect to each Mortgaged Property constituting security for
a Specially Serviced Loan and each REO Property, which efforts shall
include a letter sent to the related Borrower or other appropriate
party each quarter (followed up with telephone calls) requesting such
annual and other periodic operating statements and rent rolls until
they are received.
(ii) Within 45 days of receipt by the Special Servicer of any
annual operating statements with respect to any Mortgaged Property
relating to a Specially Serviced Loan, an NOI Adjustment Worksheet for
such Mortgaged Property or REO Property (with the annual operating
statements attached thereto as an exhibit); provided, however, that,
with the consent of the Servicer, the Special Servicer may instead
provide data files in a form acceptable to the Servicer. The Special
Servicer will use the "Normalized" column from the NOI Adjustment
Worksheet to update the full year-end data on any Operating Statement
Analysis Report and will use any operating statements received with
respect to any Mortgaged Property which is an REO Property or
constitutes security for a Specially Serviced Loan to update the
Operating Statement Analysis Report for such Mortgaged Property.
The Special Servicer shall maintain one Operating Statement
Analysis Report for each Mortgaged Property securing a Specially Serviced Loan
and REO Property. The Operating Statement Analysis Report for each Mortgaged
Property which constitutes security for a Specially Serviced Loan or is an REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Servicer within 45 days after receipt by the Special Servicer
of updated operating statements for each such Mortgaged Property; provided,
however, that, with the consent of the Servicer, the Special Servicer may
instead provide data files in a form acceptable to the Servicer. The Special
Servicer shall provide each such report to the Servicer in the then applicable
CMSA format.
(h) The Bond Administrator and 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.
Section 3.14 Annual Statement as to Compliance. The Servicer and
the Special Servicer (the "reporting person") each shall deliver to the Trustee,
the Bond Administrator, the Depositor, each Companion Holder and to the Rating
Agencies on or before April 15 of each year, beginning with April 15, 2001, an
Officers' Certificate stating, as to each signatory thereof, (i) that a review
of the activities 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 throughout such year (or such shorter period), or, if there has
been a 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 the Upper-Tier REMIC, Lower-Tier REMIC or the Loan REMICs as a REMIC
or of the Grantor Trust as a grantor trust from the IRS or any other
governmental agency or body.
Section 3.15 Annual Independent Public Accountants' Servicing
Report. 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 to furnish
a statement (an "Accountant's Statement") to the Bond Administrator, the
Depositor, each Companion Holder and to 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 Freddie Mac, 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
Freddie Mac require it to report, in which case such exceptions and errors shall
be so reported. 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 Bond Administrator for filing in
accordance with the procedures set forth in Section 3.22 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 3.16 Access to Certain Documentation. The Servicer and
Special Servicer shall provide to any Certificateholders that are federally
insured financial institutions, the Federal Reserve Board, the FDIC and the OTS
and the supervisory agents and examiners of such boards and such corporations,
and any other governmental or regulatory body to the jurisdiction of which any
Certificateholder is subject, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the Federal Reserve Board, FDIC, OTS
or any such governmental or regulatory body, such access being afforded without
charge but only upon reasonable request and during normal business hours at the
offices of the Servicer or Special Servicer. In addition, upon reasonable prior
notice to the Servicer or the Special Servicer, as the case may be, the
Depositor and the Companion Holders or their accountants or other
representatives shall have access to review the documents, correspondence and
records of the Servicer or the Special Servicer, as the case may be, as they
relate to a Loan Pair, a Mortgaged Property and any Foreclosed Property during
normal business hours at the offices of the Servicer or the Special Servicer, as
the case may be. Nothing in this Section 3.16 shall detract from the obligation
of the Servicer and Special Servicer to observe any applicable law prohibiting
disclosure of information with respect to the Borrowers, and the failure of the
Servicer and Special Servicer to provide access as provided in this Section 3.16
as a result of such obligation shall not constitute a breach of this Section
3.16.
Section 3.17 Title and Management of REO Properties and REO
Account Properties. (a) In the event that title to any Mortgaged Property is
acquired for the benefit of Certificateholders (and in the case of a Mortgaged
Property securing a Loan Pair, the related Companion Holder) in foreclosure, by
deed in lieu of foreclosure or upon abandonment or reclamation from bankruptcy,
the deed or certificate of sale shall be taken in the name of the Trustee, or
its nominee (which shall not include the Servicer), or a separate Trustee or
co-Trustee, on behalf of the Trust Fund and such Companion Holder, if
applicable. The Special Servicer, on behalf of the Trust Fund (and in the case
of a Mortgaged Property securing a Loan Pair, the related Companion Holder),
shall dispose of any REO Property prior to the close of the third calendar year
following the year in which the Trust Fund acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless (i) the Special
Servicer on behalf of the Lower-Tier REMIC or the related Loan REMIC has applied
for an extension of such period pursuant to Sections 856(e)(3) and 860G(a)(8)(A)
of the Code, in which case the Special Servicer shall sell such REO Property
within the applicable extension period or (ii) the Special Servicer seeks and
subsequently receives an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund), addressed to the Special Servicer the Trustee and the Bond
Administrator, to the effect that the holding by the Trust Fund of such REO
Property for an additional specified period will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (determined without regard to the exception applicable
for purposes of Section 860D(a) of the Code) at any time that any Certificate is
outstanding, in which event such period shall be extended by such additional
specified period subject to any conditions set forth in such Opinion of Counsel.
The Special Servicer, on behalf of the Trust Fund (and in the case of a
Mortgaged Property securing a Loan Pair, the related Companion Holder), shall
dispose of any REO Property held by the Trust Fund (and in the case of a
Mortgaged Property securing a Loan Pair, the related Companion Holder) prior to
the last day of such period (taking into account extensions) by which such REO
Property is required to be disposed of pursuant to the provisions of the
immediately preceding sentence in a manner provided under Section 3.18 hereof.
The Special Servicer shall manage, conserve, protect and operate each REO
Property for the Certificateholders and the related Companion Holder, if
applicable, solely for the purpose of its prompt disposition and sale in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority,
subject only to the Servicing Standard and the specific requirements and
prohibitions of this Agreement (including without limitation Section 3.31
hereof), to do any and all things in connection with any REO Property as are
consistent with the manner in which the Special Servicer manages and operates
similar property owned or managed by the Special Servicer or any of its
Affiliates, all on such terms and for such period as the Special Servicer deems
to be in the best interests of Certificateholders and in the case of a Loan
Pair, the related Companion Holder, as a collective whole, and, in connection
therewith, the Special Servicer shall agree to the payment of management fees
that are consistent with general market standards. Consistent with the
foregoing, the Special Servicer shall cause or permit to be earned with respect
to such REO Property any "net income from foreclosure property," within the
meanings of Section 860G(c) of the Code, which is subject to tax under the REMIC
Provisions, only if it has determined, and has so advised the Trustee, the Bond
Administrator and any related Companion Holder in writing, that the earning of
such income on a net after-tax basis could reasonably be expected to result in a
greater recovery on behalf of Certificateholders and the related Companion
Holder, as a collective whole, than an alternative method of operation or rental
of such REO Property that would not be subject to such a tax.
The Special Servicer shall segregate and hold all revenues
received by it with respect to any REO Property separate and apart from its own
funds and general assets and shall establish and maintain with respect to any
REO Property a segregated custodial account (each, an "REO Account"), each of
which shall be an Eligible Account and shall be entitled "Wells Fargo Bank
Minnesota, N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates and the related Companion Holder, if any, REO Account." The REO
Property and the related REO Account with respect to the Fairgrounds Square Loan
and the Towne Square Apartments Loan shall be treated as assets of the related
Loan REMIC for all purposes of this Agreement. The Special Servicer shall be
entitled to withdraw for its account any interest or investment income earned on
funds deposited in an REO Account to the extent provided in Section 3.07(b). The
Special Servicer shall deposit or cause to be deposited in the REO Account
within one Business Day after receipt of REO Proceeds, and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property and for other Property Protection Expenses with respect to
such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property; and
(iv) any taxes imposed on the Upper-Tier REMIC, the Lower-Tier
REMIC or related Loan REMIC in respect of net income from foreclosure
property in accordance with Section 4.05; provided, that no taxes
imposed under this clause (iv) shall be deducted or reimbursable from
or otherwise charged against a Companion Holder's allocable share of
REO Proceeds.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above the Special Servicer shall
advance the amount of such shortfall as a Property Advance unless the Special
Servicer determines, in its good faith judgment, that such Advance would be a
Nonrecoverable Advance. If the Special Servicer does not make such Advance in
violation of the immediately preceding sentence, the Servicer shall make such
Advance and if the Servicer does not make any such Advance, the Trustee shall
make such Advance, unless in each case, the Special Servicer, the Servicer or
the Trustee, as applicable, determines that such Advance would be a
Nonrecoverable Advance. The Trustee shall be entitled to rely, conclusively, on
any determination by the Special Servicer or the Servicer, as applicable, that
an Advance, if made, would be a Nonrecoverable Advance. The Trustee, when making
an independent determination whether or not a proposed Advance would be a
Nonrecoverable Advance, shall be subject to the standards applicable to the
Servicer hereunder. The Special Servicer, Servicer or the Trustee, as
applicable, shall be entitled to reimbursement of such Advances (with interest
at the Advance Rate) made pursuant to the preceding sentence, to the extent
permitted by Section 3.06(d) and Section 3.06(e). The Special Servicer shall
withdraw from each REO Account and remit to the Servicer for deposit into the
Collection Account on a monthly basis prior to or on the related Due Date the
Net REO Proceeds received or collected from each REO Property, except that in
determining the amount of such Net REO Proceeds, the Special Servicer may retain
in each REO Account reasonable reserves for repairs, replacements and necessary
capital improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit any New Lease to be entered into, renewed or extended,
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 ten
percent of the construction of such building or other improvement was
completed before default on the related Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any
REO Property on any date more than 90 days after its date of
acquisition by the Trust Fund, unless such Person is an Independent
Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer, the Trustee and the Bond
Administrator (which opinion shall be an expense of the Trust Fund) 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
(determined without regard to the exception applicable for purposes of Section
860D(a) 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.
The Special Servicer shall be required to contract with an
Independent Contractor (so long as any Certificate is then rated by Fitch,
acceptable to Fitch as evidenced by written confirmation that contracting with
such Independent Contractor would not, in and of itself cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to any Class of
Certificates), the fees and expenses of which shall be an expense of the Trust
Fund and if a Loan Pair is involved, the related Companion Holder and payable
out of REO Proceeds, for the operation and management of any REO Property,
within 90 days of the Trust Fund's acquisition thereof (unless the Special
Servicer shall have provided the Trustee, the Bond Administrator and the related
Companion Holder with an Opinion of Counsel that the operation and management of
any REO Property other than through an Independent Contractor shall not cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Code Section 860G(a)(8)) (which opinion shall be an expense of the
Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be
reasonable and customary for the area and type of property and shall
not be inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above, and remit all related revenues
(net of such costs and expenses) to the Special Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) 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 to the Trust Fund, the Trustee or the Bond
Administrator on behalf of the Certificateholders and, in the case of
an REO Property securing a Loan Pair, the related Companion Holder,
with respect to the operation and management of any such REO Property;
and
(iv) 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.
(c) Promptly following any acquisition by the Special Servicer
of an REO Property on behalf of the Trust Fund and if a Loan Pair is involved,
on behalf of the related Companion Holder, the Special Servicer shall notify the
Servicer thereof, and, upon receipt of such notice, the Special Servicer shall
obtain an Updated Valuation thereof, but only in the event that any Updated
Valuation with respect thereto is more than 12 months old, in order to determine
the fair market value of such REO Property and shall notify the Depositor, the
Servicer, the Bond Administrator and the related Companion Holder of the results
of such appraisal. Any such appraisal shall be conducted in accordance with
Appraisal Institute standards and the cost thereof shall be an expense of the
Trust Fund and if a Loan Pair is involved, the related Companion Holder
(allocated, as an Additional Trust Fund Expense, pro rata based on Stated
Principal Balances and principal balances of the Companion Loans, respectively).
The Special Servicer shall obtain a new Updated Valuation or a letter update
every 12 months thereafter until the REO Property is sold.
(d) When and as necessary, the Special Servicer shall send to
the Bond Administrator and if a Loan Pair is involved, the related Companion
Holder, a statement prepared by the Special Servicer setting forth the amount of
net income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
(e) If any Excess Liquidation Proceeds are received, the Bond
Administrator shall establish and maintain the Excess Liquidation Proceeds
Account, which may have one or more subaccounts, to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Excess
Liquidation Proceeds Account shall be an Eligible Account. On each Servicer
Remittance Date, the Servicer shall withdraw from the Collection Account and
remit to (A) the Bond Administrator for deposit into the Lower-Tier Distribution
Account (which the Bond Administrator shall then deposit in the Excess
Liquidation Proceeds Account) all Excess Liquidation Proceeds received during
the Collection Period ending on the Determination Date immediately prior to such
Servicer Remittance Date which are allocable to a Mortgage Loan and (B) the
Companion Paying Agent for deposit into the appropriate Companion Distribution
Account the amount of any Excess Liquidation Proceeds received during the
Collection Period ending on the Determination Date immediately prior to such
Servicer Remittance Date which are allocable to any related Companion Loan.
Funds in the Excess Liquidation Proceeds Account may be invested by the Bond
Administrator in Permitted Investments in accordance with the provisions of
Section 3.07.
Upon the disposition of any REO Property in accordance with this
Section 3.17, the Special Servicer shall calculate the Excess Liquidation
Proceeds allocable to the Mortgage Loans, if any, realized in connection with
such sale and deposit such amount in the Excess Liquidation Proceeds Account.
Section 3.18 Sale of Specially Serviced Loans and REO Properties.
(a) If the Special Servicer has determined to sell any Specially Serviced Loan
in accordance with Section 3.10, the Special Servicer shall promptly notify, in
writing, the Servicer, the Trustee and the Bond Administrator, and the Bond
Administrator, on behalf of the Trustee, shall so notify, in writing, within 10
days after receipt of its notice, the Holders of the Controlling Class and any
related Companion Holder. The Holder or Holders of the majority of the Voting
Rights of the Controlling Class (the "Majority Certificateholder") may, or in
the case of any Loan Pair, if the related Co-Lender Agreement so provides, then
the related Companion Holder or in the case of the Alliance Loan Pair or the
Crowne Plaza Loan Pair, if the related Loan Documents so provide, the holder of
the Alliance Mezzanine Loan or the Crowne Plaza Mezzanine Loan, as applicable,
may, at its option purchase from the Trust Fund, at a price equal to the
Repurchase Price, any such Specially Serviced Loan. The Repurchase Price for any
Specially Serviced Loan purchased hereunder shall be deposited into the
Collection Account, and the Custodian, upon receipt of an Officers' Certificate
from the Servicer to the effect that such deposit has been made, shall release
or cause to be released to the Majority Certificateholder or the related
Companion Holder (as the case may be) (or any designee thereof) the related
Mortgage File, and the Trustee shall execute and deliver such instruments of
transfer or assignment as are provided to it, in each case without recourse, as
shall be necessary to vest in the Majority Certificateholder or the related
Companion Holder, as the case may be (or any designee thereof), ownership of
such Specially Serviced Loan.
(b) If the Majority Certificateholder or in the case of any
Loan Pair, the related Companion Holder or in the case of the Alliance Loan Pair
or the Crowne Plaza Loan Pair (if the related Loan Documents so provide), the
holder of the Alliance Mezzanine Loan or the Crowne Plaza Mezzanine Loan, as
applicable, has not purchased any such Specially Serviced Loan within 15 days
(or such later period of time as specified in the related Co-Lender Agreement or
the documents relating to the related Mezzanine Loan) of its having received
notice in respect thereof pursuant to the immediately preceding subsection (a),
either the Special Servicer or, subject to the Special Servicer's prior rights
in such regard, the Servicer, may at its option, within 15 Business Days after
receipt of such notice, purchase such Specially Serviced Loan from the Trust
Fund, at a price equal to the Repurchase Price. The Repurchase Price for any
Specially Serviced Loan purchased hereunder shall be deposited into the
Collection Account, and the Custodian, upon receipt of an Officers' Certificate
from the Servicer to the effect that such deposit has been made, shall release
or cause to be released to the Servicer or the Special Servicer, as applicable,
the related Mortgage File, and the Trustee shall execute and deliver such
instruments of transfer or assignment as are provided to it, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Servicer or the Special Servicer as applicable, such Specially Serviced
Loan.
(c) The Special Servicer may (to the extent consistent with
the related Asset Status Report) offer to sell any Specially Serviced Loan not
otherwise purchased by the Majority Certificateholder, the related Companion
Holder or if the Alliance Loan Pair or the Crowne Plaza Loan Pair is involved,
the related holder of the Alliance Mezzanine Loan or the Crowne Plaza Mezzanine
Loan, as applicable, to the Servicer or the Special Servicer pursuant to
subsection (a) or (b) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would produce a greater
recovery to Certificateholders and if a Loan Pair is involved, the related
Companion Holder, as a collective whole, on a present value basis than would
liquidation of the related Mortgaged Property; provided, however, that the
Special Servicer may not sell the related Companion Loan component to a
Specially Serviced Loan without the related Companion Holder's consent. Such
offering shall be made in a commercially reasonable manner (which, for purposes
hereof includes an offer to sell without representation or warranty other than
customary warranties of title, loan status, condition and similar customary
matters, if liability for breach thereof is limited to recourse against the
Trust Fund) for a period of not less than 10 days or more than 90 days. Unless
the Special Servicer determines that acceptance of any certain offer would not
be in the best economic interests of the Trust Fund, the Special Servicer (to
the extent consistent with the related Asset Status Report) shall accept the
highest cash offer received from any Person that constitutes a fair price for
such Mortgage Loan. In the absence of any offer determined as provided below to
be fair, the Special Servicer shall proceed with respect to such Specially
Serviced Loan in accordance with Section 3.10 and, otherwise, in accordance with
the Servicing Standard.
The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.17(a). The
Special Servicer shall accept the first (and, if multiple bids are
contemporaneously received, highest) cash bid received from any Person that
constitutes a fair price for such REO Property. If the Special Servicer
determines, in its good faith and reasonable judgment, that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.17(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.
The Special Servicer shall give the Bond Administrator, the
Servicer, the Directing Certificateholder and in the case of a Loan Pair, the
related Companion Holder, not less than ten Business Days' prior written notice
of its intention to sell any defaulted Specially Serviced Loan or Mortgage Loan
or REO Property, and notwithstanding anything to the contrary herein, neither
the Trustee, in its individual capacity, nor any of its Affiliates may bid for
or purchase any defaulted Specially Serviced Loan or any REO Property pursuant
hereto.
(d) Whether any cash bid constitutes a fair price for any
defaulted Specially Serviced 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, and by the Trustee,
if the highest bidder is the Special Servicer; provided, however, that no bid
from an Interested Person shall constitute a fair price unless (i) it is the
highest bid received and (ii) at least two other bids are received from
independent third parties. In determining whether any offer received from an
Interested Person represents a fair price for any such Mortgage Loan, Loan Pair
or REO Property, the Trustee shall be supplied with and shall rely on the most
recent appraisal or Updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or in the absence of any such
appraisal, on a narrative appraisal prepared by an appraiser selected by the
Special Servicer if the Special Servicer is not making an offer with respect to
a Mortgage Loan or REO Property (or by the Servicer if the Special Servicer is
making such an offer). The cost of any such narrative appraisal shall be covered
by, and shall be reimbursable as, a Property Advance. In determining whether any
offer from a Person other than an Interested Person constitutes a fair price for
any such Mortgage Loan, Loan Pair or REO Property, the Special Servicer shall
take into account (in addition to the results of any appraisal, updated
appraisal or narrative appraisal that it may have obtained pursuant to this
Agreement within the prior 12 months), and in determining whether any offer from
an Interested Person constitutes a fair price for any such Specially Serviced
Loan or REO Property, any appraiser shall be instructed to take into account, as
applicable, among other factors, the period and amount of any delinquency on the
affected Specially Serviced 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 3.17(a). The Repurchase Price for any Specially Serviced Loan or REO
Property shall in all cases be deemed a fair price. Notwithstanding any other
provision of this Agreement, the Special Servicer shall have no authority to
sell any Companion Loan without the related Companion Holder's consent.
(e) Subject to subsections (a) through (d) above, subsection
(i) below and Section 3.31, the Special Servicer shall act on behalf of the
Trustee and any related Companion Holder in negotiating and taking any other
action necessary or appropriate in connection with the sale of any defaulted
Specially Serviced Loan or REO Property, and the collection of all amounts
payable in connection therewith. In connection therewith, the Special Servicer
may charge for its own account prospective offerors, and may retain, fees that
approximate the Special Servicer's actual costs in the preparation and delivery
of information pertaining to such sales or exchanging offers without obligation
to deposit such amounts into the Collection Account. Any sale of a defaulted
Specially Serviced Loan or any REO Property shall be final and without recourse
to the Trustee, the Trust Fund or any Companion Holder (except such recourse to
the Trust Fund imposed by those representations and warranties typically given
in such transactions, any prorations applied thereto and any customary closing
matters), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Special Servicer, the Servicer, the Depositor or the
Trustee shall have any liability to any Certificateholder or any Companion
Holder with respect to the purchase price therefor accepted by the Special
Servicer or the Trustee.
(f) Any sale of a defaulted Specially Serviced Loan or any REO
Property shall be for cash only.
(g) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders and with respect to any Loan Pair, the related Companion
Holder, as a collective whole, and the Special Servicer may accept a lower cash
offer (from any Person other than itself or an Affiliate) if it determines, in
its reasonable and good faith judgment, that acceptance of such offer would be
in the best interests of the Certificateholders and with respect to any Loan
Pair, the related Companion Holder, as a collective whole (for example, if the
prospective buyer making the lower offer is more likely to perform its
obligations or the terms offered by the prospective buyer making the lower offer
are more favorable).
(h) Notwithstanding anything to the contrary contained in this
Section 3.18, with respect to any Loan Pair, the related Mortgage Loan may not
be sold pursuant to this Section 3.18 so long as it is subject to the exclusive
right of the related Companion Holder to purchase such Mortgage Loan during the
period provided for in the related Co-Lender Agreement. At any time after the
expiration of such period, if the related Companion Holder has not elected to
purchase such Mortgage Loan, the procedures set forth in this Section 3.18 shall
apply. With respect to any Loan Pair, if a Mortgage Loan (but not any related
Companion Loan) is purchased under this Section 3.18, then such Loan Pair shall
continue to be serviced and specially serviced by the Servicer and the Special
Servicer hereunder until the earlier of (x) the 60th day following the date of
such purchase and (y) the date on which a replacement servicing agreement is
entered into between such Person and the related Companion Holder on terms
substantially similar to the pertinent provisions contained in this Agreement
with respect to the servicing thereof.
Section 3.19 Additional Obligations of the Servicer and Special
Servicer; Inspections. (a) The Servicer (or, with respect to Specially Serviced
Loans and REO Properties, the Special Servicer) shall inspect or cause to be
inspected (at its own expense) each Mortgaged Property (i) at such times and in
such manner as are consistent with the Servicing Standard, but in any event
shall inspect each Mortgaged Property with an Allocated Loan Amount of (A)
$2,000,000 or more at least once every 12 months and (B) less than $2,000,000 at
least once every 24 months, in each case commencing in 2001 (or at such other
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), (ii) if the current DSCR for
the related Mortgage Loan is less than 1.0x, and (iii) if the related Mortgage
Loan is in default or is more than 60 days delinquent. The Servicer or Special
Servicer, as applicable, shall send to the Rating Agencies and, upon request, to
the Underwriters within 20 days of completion, each inspection report, unless
the Rating Agencies and, upon request, the Underwriters, as applicable, notify
the Servicer or Special Servicer, as applicable, that it does not want such
reports.
(b) With respect to each Mortgage Loan, the Servicer (or the
Special Servicer, in the case of a Specially Serviced Loan) shall enforce the
Trustee's (or with respect to a Companion Loan, the related Companion Holder's)
rights with respect to the Manager under the related Loan Documents and
Management Agreement.
(c) The Servicer and the Special Servicer, as applicable,
shall discuss with the Directing Certificateholder and if a Loan Pair is
involved, the related Companion Holder (and Operating Advisor acting on its
behalf), on a monthly basis, the performance of any Mortgage Loan or Companion
Loan which is a Specially Serviced Loan, is delinquent, has been placed on a
"Watch List" or has been identified by the Servicer or the Special Servicer, as
exhibiting deteriorating performance.
Section 3.20 Authenticating Agent. The Bond Administrator may
appoint an Authenticating Agent to execute and to authenticate Certificates. The
Authenticating Agent must be acceptable to the Servicer and must be a
corporation organized and doing business under the laws of the United States of
America or any state, having a principal office and place of business in a state
and city acceptable to the Servicer, having a combined capital and surplus of at
least $15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities. The Bond
Administrator shall serve as the initial Authenticating Agent and the Bond
Administrator hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Bond
Administrator or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Bond Administrator,
the Bond Administrator, the Depositor and the Servicer. The Trustee may at any
time terminate the agency of the Authenticating Agent by giving written notice
of termination to the Authenticating Agent, the Depositor and the Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time the Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Bond Administrator may appoint a successor
Authenticating Agent, which shall be acceptable to the Servicer and the
Depositor, and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.20.
The Authenticating Agent shall have no responsibility or
liability for any action taken by it as such at the direction of the Bond
Administrator. Any compensation paid to the Authenticating Agent shall be an
unreimbursable expense of the Bond Administrator.
Section 3.21 Appointment of Custodians. State Street Bank and
Trust Company shall be the initial Custodian hereunder. The Trustee may appoint
one or more Custodians to hold all or a portion of the Mortgage Files on behalf
of the Trustee and otherwise perform the duties set forth in Article II, by
entering into a Custodial Agreement with any Custodian who is not the Trustee,
the Bond Administrator or the Depositor. The Trustee agrees to comply with the
terms of each Custodial Agreement and to enforce the terms and provisions
thereof against the Custodian for the benefit of the Certificateholders. The
Trustee shall not be liable for any act or omission of the Custodian under the
Custodial Agreement. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000, shall have a long-term debt rating of at least
"BBB" from Fitch and S&P, unless the Trustee shall have received, so long as any
Certificate is then rated by Fitch, prior written confirmation from Fitch that
the appointment of such Custodian would not cause Fitch to withdraw, qualify or
downgrade any of its then-current ratings on the Certificates, and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage
File. Each Custodial Agreement may be amended only as provided in Section 10.07.
Any compensation paid to the Custodian shall be an unreimbursable expense of the
Bond Administrator. If the Custodian is an entity other than the Trustee, the
Custodian shall maintain a fidelity bond in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement. The Custodian shall be deemed to have complied with this provision if
one of its Affiliates has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Custodian. In
addition, the Custodian shall keep in force during the term of this Agreement a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its officers and employees in connection with its obligations
hereunder in the form and amount that are customary for securitizations similar
to the securitization evidenced by this Agreement. All fidelity bonds and
policies of errors and omissions insurance obtained under this Section 3.21
shall be issued by a Qualified Insurer.
Section 3.22 Reports to the Securities and Exchange Commission;
Available Information. (a) The Servicer and the Bond Administrator shall
prepare and the Bond Administrator sign and file, on behalf of the Depositor,
any and all Exchange Act Reports; provided, however, that (i) the Depositor
shall prepare, sign and file with the Commission the initial Form 8-K relating
to the Trust Fund and (ii) the Special Servicer shall prepare and sign on behalf
of the Depositor any Exchange Act Report which includes an Annual Compliance
Report relating to the Special Servicer. Each Exchange Act Report consisting of
a monthly Distribution Date Statement, Comparative Financial Status Report,
Delinquent Loan Status Report, Historical Liquidation Report, Historical Loan
Modification Report, REO Status Report, Operating Statement Analysis, NOI
Adjustment Worksheet, Watch List, or report pursuant to Section 4.02(b)(i) shall
be prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act Report
consisting of an Annual Compliance Report shall be prepared as exhibits to an
Annual Report on Form 10-K and shall identify the aggregate number of Beneficial
Owners of the Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates (the "Public Certificates") holding positions in the Public
Certificates as of December 31 (or the nearest Business Day if such date is not
a Business Day) of the related year based on information provided by the Bond
Administrator. The Bond Administrator shall provide the Servicer and the Special
Servicer with a list of Beneficial Owners holding Public Certificates as of
December 31 of the related year no later than two Business Days prior to the
date on which the Servicer or Special Servicer, as applicable, is required to
deliver the related Exchange Act Report to the Bond Administrator. For each
Exchange Act Report, the Servicer or the Special Servicer, as applicable, shall
prepare (i) a manually-signed paper version of such report and (ii) an
electronic version of such report, which version shall be prepared as a
Microsoft Word for Windows file (or in such other format as the Bond
Administrator, the Depositor and the Servicer or the Special Servicer may
agree), that is suitable for filing via the SEC EDGAR system. Exchange Act
Reports consisting of (i) a monthly Distribution Date Statement, a Comparative
Financial Status Report, Delinquent Loan Status Report, Historical Liquidation
Report, Historical Loan Modification Report, REO Status Report, Operating
Statement Analysis, NOI Adjustment Worksheet, Watch List, or report pursuant to
Section 4.02(b)(i) shall be filed within ten days after each Distribution Date;
and (ii) an Annual Compliance Report shall be filed on or prior to April 15 of
each calendar year. Manually-signed copies of each Exchange Act Report shall be
delivered to the Bond Administrator.
All reports and notices to be filed by the Bond Administrator,
other than the monthly Distribution Date Statements and those reports available
to Certificateholders and prospective purchasers on the Bond Administrator's
website, shall be delivered by the Servicer to the Bond Administrator no later
than 3 days after each Distribution Date, and shall be in an 80 column text
format suitable for EDGAR filing, or in such other format that is acceptable to
the Bond Administrator from time to time.
If information for any Exchange Act Report is incomplete by the
date on which such report is required to be filed under the Exchange Act, the
Bond Administrator or, with respect to any Annual Compliance Report relating to
the Servicer or the Special Servicer, the Servicer or the Special Servicer, as
applicable, shall prepare and execute a Form 12b-25 under the Exchange Act and
shall deliver an electronic version of such form to the Bond Administrator. The
Bond Administrator or the Servicer or the Special Servicer, as applicable, shall
file the related report in electronic form when such information is available.
If the requirements of Section 15(d) of the Exchange Act have not
been met, the Bond Administrator shall suspend filing reports with the
Commission as of fiscal year 2001 and shall file a Form 15 with the Commission
no later than January 31, 2001.
The Bond Administrator shall solicit any and all proxies of the
Certificateholders whenever such proxies are required to be solicited pursuant
to the Exchange Act.
(b) [Intentionally Left Blank].
(c) The Servicer shall, in accordance with such reasonable
rules and procedures as it may adopt (which may include the requirement that an
agreement be executed that provides that such information shall be used solely
for purposes of evaluating the investment characteristics of the Certificates
and in accordance with applicable law governing securities and containing
customary confidentiality provisions, to the extent the Servicer deems such an
agreement or provisions to be necessary or appropriate), also make available any
additional information relating to the Mortgage Loans, the Mortgaged Properties
or the Borrowers, for review by the Depositor, the Underwriters, 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 any related Loan Documents related to a Mortgage Loan.
(d) The Servicer and the Special Servicer shall make available
at its offices during normal business hours, or send to the requesting party at
the expense of each such requesting party (other than the Bond Administrator,
the Rating Agencies, the Directing Certificateholder, each Companion Holder and
the Depositor) for review by the Depositor, the Trustee, the Rating Agencies,
the Companion Holders, the Underwriters and any other Persons to whom the
Servicer or the Special Servicer, as applicable, believes such disclosure to be
appropriate the following items: (i) all financial statements, occupancy
information, rent rolls, retail sales information, average daily room rates and
similar information received by the Servicer or the Special Servicer, as
applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Servicer or the Special Servicer, as applicable, in connection
with the property inspections pursuant to Section 3.19, (iii) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer or the Special Servicer, as applicable and (iv) any and all
Officers' Certificates and other evidence delivered to the Bond Administrator
and the Depositor to support the Servicer's, the Special Servicer's or the
Trustee's determination that any Advance was, or if made would be, a
Nonrecoverable Advance. Copies of any and all of the foregoing items shall be
available, to the extent in their possession, from the Servicer or the Special
Servicer, as applicable, or the Bond Administrator, as applicable, upon request.
(e) Notwithstanding the obligations of the Servicer set forth
in the preceding provisions of this Section 3.22, 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 Bond Administrator
or the Servicer has determined that such withholding is appropriate.
(f) Notwithstanding any provisions in this Agreement to the
contrary, the Bond Administrator shall not be required to review the content of
any Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Bond Administrator
shall have no liability with respect to any Exchange Act Report filed with the
Commission or delivered to Certificateholders. None of the Servicer, the Special
Servicer, the Trustee and the Bond Administrator shall be responsible for the
accuracy or completeness of any information supplied by a Borrower or a third
party for inclusion in any Form 8-K, and each of the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, and each of their respective
directors, officers, employees and agents shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with any claim or legal action relating to any misstatement or omission or
alleged misstatement or omission therein. None of the Trustee, the Bond
Administrator, 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, the Trustee and the
Bond Administrator shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense incurred in connection with any claim or
legal action relating to any misstatement or omission or alleged misstatement or
omission therein.
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts. The Servicer shall administer each Lock-Box
Account, Cash Collateral Account, Escrow Account and Reserve Account in
accordance with the related Mortgage or Loan Agreement, Cash Collateral Account
Agreement or Lock-Box Agreement, if any.
Section 3.24 Property Advances. (a) The Servicer and the Special
Servicer (or, to the extent provided in Section 3.24(c), the Trustee) to the
extent specifically provided for in this Agreement, shall make any Property
Advances as and to the extent otherwise required pursuant to the terms hereof.
For purposes of distributions to Certificateholders and compensation to the
Servicer, the Special Servicer or the Trustee, Property Advances shall not be
considered to increase the principal balance of any Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so provide.
(b) At its option and notwithstanding anything in this
Agreement to the contrary, the Special Servicer may either (i) make any Property
Advance to be made on any Specially Serviced Loan or (ii) give the Servicer not
less than five Business Days' notice with respect to any Property Advance to be
made on any Specially Serviced Loan, before the date on which the Servicer is
required to make such Property Advance with respect to such Specially Serviced
Loan; provided, however, that the Special Servicer shall be required to provide
the Servicer with only two Business Days' notice in respect of Property Advances
required to be made on an urgent or emergency basis (which may include, without
limitation, Property Advances required to make tax or insurance payments). In
addition, in the event that the Special Servicer elects to have the Servicer
make such Property Advance, contemporaneously with giving notice to the
Servicer, it shall provide the Servicer with such information in its possession
as the Servicer may reasonably request to enable the Servicer to determine
whether a requested Advance would constitute a Nonrecoverable Advance. Any
request by the Special Servicer that the Servicer make a Property Advance shall
be deemed to be a determination by the Special Servicer that such requested
Property Advance is not a Nonrecoverable Advance, and the Servicer shall be
entitled to conclusively rely (but is not required to rely) on such
determination; provided, however, that the Special Servicer shall not be liable
to the Trust Fund or the Servicer if such Advance shall be non-recoverable so
long as such determination was made in accordance with the Servicing Standard.
On the fifth Business Day before each Distribution Date, the Special Servicer
shall report to the Servicer the Special Servicer's determination as to whether
any Property Advance previously made with respect to a Specially Serviced Loan
is a Nonrecoverable Advance. The Servicer shall be entitled to conclusively rely
(but is not required to rely) on such determination.
Notwithstanding Section 3.24(e), the Servicer on a monthly basis
shall reimburse the Special Servicer for any Property Advances made by it during
the immediately preceding Collection Period, together with any related Advance
Interest Amounts in respect of such Property Advances, and the Servicer shall be
entitled to reimbursement of all such amounts to the extent permitted pursuant
to Section 3.06(d) and if applicable, Section 3.06(e).
(c) The Servicer shall notify the Trustee in writing promptly
upon, and in any event within one Business Day after, becoming aware that it
will be unable to make any Property Advance required to be made pursuant to the
terms hereof, and in connection therewith, shall set forth in such notice the
amount of such Property Advance, the Person to whom it is to be paid, and the
circumstances and purpose of such Property Advance, and shall set forth therein
information and instructions for the payment of such Property Advance, and, on
the date specified in such notice for the payment of such Property Advance, or,
if the date for payment has passed or if no such date is specified, then within
five Business Days following such notice, the Trustee, subject to the provisions
of Section 3.24(d), shall pay the amount of such Property Advance in accordance
with such information and instructions.
(d) None of the Servicer, the Special Servicer or the Trustee
shall be obligated to make a Property Advance as to any Mortgage Loan, Loan Pair
or REO Property if the Servicer, the Special Servicer or the Trustee, as
applicable, determines that such Advance will be a Nonrecoverable Advance. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Servicer or the Special Servicer, as applicable, that a Property Advance, if
made, would be a Nonrecoverable Advance. The Trustee, in determining whether or
not a Property Advance previously made is, or a proposed Property Advance, if
made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Servicer or Special Servicer, as applicable, hereunder.
(e) The Servicer, the Special Servicer and/or the Trustee, as
applicable, shall be entitled to the reimbursement of Property Advances made by
any of them to the extent permitted pursuant to Section 3.06(d) and if
applicable, Section 3.06(e) of this Agreement, together with any related Advance
Interest Amount in respect of such Property Advances, and the Servicer and the
Special Servicer each hereby covenant and agree to promptly seek and effect the
reimbursement of such Property Advances from the related Borrowers to the extent
permitted by applicable law and the related Loan Documents.
Section 3.25 Appointment of Special Servicer. (a) ORIX Real
Estate Capital Markets, LLC is hereby appointed as the initial Special Servicer
to service each Specially Serviced Loan.
(b) Certificateholders representing greater than 50% of the
Percentage Interests of the Controlling Class (including any Certificates held
by the Special Servicer or its Affiliates) shall be entitled to remove the
Special Servicer with or without cause and to appoint a successor Special
Servicer, provided that with respect to any Loan Pair, as long as no Control
Appraisal Event has occurred and is continuing, the related Companion Holder (or
the Operating Advisor acting on its behalf) has consented to such appointment.
If there is a Special Servicer Event of Default, the Special Servicer shall be
removed and replaced pursuant to Sections 7.01(c) and 7.02. The Trustee shall,
promptly after receiving any such removal notice, so notify the Bond
Administrator, each Companion Holder and each Rating Agency. If the replacement
designated in such notice is consented to by the Trustee (such consent not to be
unreasonably withheld), the termination of the Special Servicer and appointment
of a successor Special Servicer pursuant to this Section 3.25(b) shall not be
effective until (i) each Rating Agency confirms to the Trustee in writing that
such appointment, in and of itself, would not cause a downgrade, qualification
or withdrawal of the then-current ratings assigned to any Class of Certificates,
(ii) the successor Special Servicer has assumed all of its responsibilities,
duties and liabilities hereunder pursuant to a writing reasonably satisfactory
to the Trustee and (iii) receipt by the Trustee of an Opinion of Counsel to the
effect that (x) the designation of such replacement to serve as Special Servicer
is in compliance with this Agreement, (y) such replacement will be bound by the
terms of this Agreement and (z) this Agreement will be enforceable against such
replacement in accordance with its terms. Any successor Special Servicer shall
make the representations and warranties provided for in Section 2.04(b) mutatis
mutandis.
The existing Special Servicer shall be deemed to have been
removed simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that the Special Servicer removed
pursuant to this Section shall be entitled to receive, and shall have received,
all amounts accrued or owing to it under this Agreement on or prior to the
effective date of such resignation and it shall continue to be entitled to any
rights that accrued prior to the date of such resignation (including the right
to receive all fees, expenses and other amounts accrued or owing to it under
this Agreement, plus interest at the Advance Rate on all such amounts until
received to the extent such amounts bear interest as provided in this Agreement,
with respect to periods prior to the date of such removal) notwithstanding any
such removal. Such removed Special Servicer shall cooperate with the Trustee and
the replacement Special Servicer in effecting the termination of the resigning
Special Servicer's responsibilities and rights hereunder, including without
limitation the transfer within two Business Days to the successor Special
Servicer for administration by it of all cash amounts that are thereafter
received with respect to the Mortgage Loans and Companion Loans.
(c) As long as no Control Appraisal Event has occurred and is
continuing, the related Companion Holder (or the Operating Advisor acting on its
behalf), at its expense, may remove the Special Servicer with respect to a Loan
Pair at any time without cause, upon at least 30 days prior notice to the
Special Servicer. No such removal shall in any manner affect the rights, duties
and obligations hereunder of the Special Servicer as they relate to any other
Mortgage Loan.
The appointment of a successor Special Servicer for a Loan Pair
shall not be effective until (A) the Trustee shall have received written
confirmation from each Rating Agency would not, in and of itself, cause a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates; (B) the successor Special Servicer has assumed in writing all
of the responsibilities, duties and liabilities of the Special Servicer
hereunder pursuant to an agreement substantially similar to this Agreement or
otherwise satisfactory to the Trustee; and (C) the Trustee shall have received
an Opinion of Counsel to the effect that (x) the designation of such replacement
to serve as Special Servicer is in compliance with this Agreement, (y) such
replacement will be bound by the terms of this Agreement and (z) this Agreement
will be enforceable against such replacement in accordance with its terms. If
within 30 days after giving notice of the removal of an existing Special
Servicer such Companion Holder's appointment of a successor Special Servicer has
not become effective, the Trustee acting at the direction of the Controlling
Class shall have the right to designate a successor Special Servicer acceptable
to the Rating Agencies (which may be the existing Special Servicer,
notwithstanding such notice of removal) as the successor Special Servicer, to
serve until such time as the appointment of a successor designated by such
Companion Holder in accordance with this Section has become effective. The
existing Special Servicer shall be deemed to have been removed simultaneously
with such designated Person's becoming the Special Servicer hereunder; provided,
however, that the Special Servicer removed pursuant to this Section (i) shall be
entitled to receive, and shall have received, all amounts accrued or owing to it
under this Agreement on or prior to the effective date of such resignation and
it shall continue to be entitled to any rights that accrued prior to the date of
such resignation (including the right to receive all fees, expenses and other
amounts accrued or owing to it under this Agreement, plus interest at the
Advance Rate on all such amounts until received to the extent such amounts bear
interest as provided in this Agreement, with respect to periods prior to the
date of such removal) notwithstanding any such removal and (ii) notwithstanding
any such removal, shall be entitled (and the successor Special Servicer shall
not be entitled) to receive any and all Workout Fees payable with respect to
such Mortgage Loan or Companion Loan (so long as such Mortgage Loan or Companion
Loan became a Corrected Mortgage Loan during the period in which such removed
Special Servicer was acting as Special Servicer thereof and so long as such
Mortgage Loan or Companion Loan was a Corrected Mortgage Loan at the time of
removal of such Special Servicer (such entitlement to continue until the Workout
Fee for such Mortgage Loan or Companion Loan ceases to be payable hereunder).
Such removed Special Servicer shall cooperate with the Trustee and the
replacement Special Servicer in effecting the termination of the resigning
Special Servicer's responsibilities and rights hereunder as they relate to the
applicable Loan Pair, including without limitation the transfer within two
Business Days to the successor Special Servicer for administration by it of all
cash amounts that are thereafter received with respect to such Loan Pair.
(d) The appointment of any such successor Special Servicer
shall not relieve the Servicer or the Trustee of their respective obligations to
make Advances as set forth herein; provided, however, the Servicer shall not be
liable for any actions or any inaction of such successor Special Servicer. Any
termination fee payable to the terminated Special Servicer (and it is
acknowledged that there is no such fee payable in the event of a termination of
the Servicer as Special Servicer or in the event of a termination for breach of
this Agreement) shall be paid by the Certificateholders or related Companion
Holder so terminating the Special Servicer and shall not in any event be an
expense of the Trust Fund; provided, however, with respect to any Loan Pair, no
such termination fee shall be payable unless the related Companion Holder
reasonably agreed to the provision therefor at the time of the appointment of
such Special Servicer.
Section 3.26 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report. (a) Upon the occurrence of any
event specified in the definition of Specially Serviced Loan with respect to any
Mortgage Loan or Loan Pair, the Servicer shall immediately give notice thereof,
to the Special Servicer, the Trustee and the related Mortgage Loan Seller and
the related Companion Holder and shall use its best efforts to provide the
Special Servicer with all information, documents (but excluding the original
documents constituting the Mortgage File) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan or Loan Pair and reasonably requested by the Special Servicer to
enable it to assume its duties hereunder with respect thereto without acting
through a sub-servicer. The Servicer shall use its best efforts to comply with
the preceding sentence within five Business Days of the date such Mortgage Loan
or Loan Pair becomes a Specially Serviced Loan and in any event shall continue
to act as Servicer and administrator of such Mortgage Loan or Loan Pair until
the Special Servicer has commenced the servicing of such Mortgage Loan or Loan
Pair, which shall occur upon the receipt by the Special Servicer of the
information, documents and records referred to in the preceding sentence. With
respect to each Mortgage Loan or Loan Pair that becomes a Specially Serviced
Loan, the Servicer shall instruct the related Borrower to continue to remit all
payments in respect of such Mortgage Loan or Loan Pair to the Servicer. The
Servicer or Special Servicer, as applicable, may agree that, notwithstanding the
preceding sentence, with respect to each Mortgage Loan or Loan Pair that becomes
a Specially Serviced Loan, the Servicer shall instruct the related Borrower to
remit all payments in respect of such Mortgage Loan or Loan Pair to the Special
Servicer, provided that the payee in respect of such payments shall remain the
Servicer. The Special Servicer shall remit to the Servicer any such payments
received by it pursuant to the preceding sentence within one Business Day of
receipt. The Servicer shall forward any notices it would otherwise send to the
Borrower of a Specially Serviced Loan to the Special Servicer who shall send
such notice to the related Borrower.
Upon determining that a Specially Serviced Loan has become a
Corrected Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Servicer, and upon giving such notice, such Mortgage Loan or Loan
Pair shall cease to be a Specially Serviced Loan in accordance with the first
proviso of the definition of Specially Serviced Loan, the Special Servicer's
obligation to service such Mortgage Loan or Loan Pair shall terminate and the
obligations of the Servicer to service and administer such Mortgage Loan or Loan
Pair as a Mortgage Loan or Loan Pair that is not a Specially Serviced Loan shall
resume. In addition, if the related Borrower has been instructed, pursuant to
the preceding paragraph, to make payments to the Special Servicer, upon such
determination, the Special Servicer shall instruct the related Borrower to remit
all payments in respect of such Specially Serviced Loan directly to the
Servicer.
(b) In servicing any Specially Serviced Loan, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File (to
the extent such documents are in the possession of the Special Servicer) and
copies of any additional related Mortgage Loan or Loan Pair information,
including correspondence with the related Borrower, and the Special Servicer
shall promptly provide copies of all of the foregoing to the Servicer as well as
copies of any analysis or internal review prepared by or for the benefit of the
Special Servicer.
(c) Not later than two Business Days preceding each date on
which the Servicer is required to furnish a report under Section 3.13(a) to the
Bond Administrator, the Special Servicer shall deliver to the Bond Administrator
(and, in the case of a Loan Pair, the related Companion Holder), with a copy to
the Servicer, a written statement describing, on a Mortgage Loan/Loan Pair by
Mortgage Loan/Loan Pair basis, (i) the amount of all payments on account of
interest received on each Specially Serviced Loan, the amount of all payments on
account of principal, including Principal Prepayments, on each Specially
Serviced Loan, the amount of Net Insurance Proceeds and Net Liquidation Proceeds
received with respect to each Specially Serviced Loan, and the amount of net
income or net loss, as determined from management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any rental income that does not constitute Rents from Real Property
with respect to the REO Property relating to each applicable Specially Serviced
Loan, in each case in accordance with Section 3.17 (it being understood and
agreed that to the extent this information is provided in accordance with
Section 3.13(f), this Section 3.26(c) shall be deemed to be satisfied) and (ii)
such additional information relating to the Specially Serviced Loans as the
Servicer, the Bond Administrator or in the case of a Loan Pair, the related
Companion Holder (or Operating Advisor acting on its behalf) reasonably requests
to enable it to perform its duties under this Agreement. Such statement and
information shall be furnished to the Servicer in writing and/or in such
electronic media as is acceptable to the Servicer.
(d) Notwithstanding the provisions of the preceding Section
3.26(c), the Servicer shall maintain ongoing payment records with respect to
each of the Specially Serviced Loans and shall provide the Special Servicer with
any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Servicer
with any information reasonably required by the Servicer to perform its duties
under this Agreement.
(e) [Intentionally omitted.]
(f) No later than 30 days after a Mortgage Loan or Loan Pair
becomes a Specially Serviced Loan, the Special Servicer shall deliver to each
Rating Agency, the Servicer, the Directing Certificateholder and in the case of
a Loan Pair, the related Companion Holder, and upon request, the Underwriters, a
report (the "Asset Status Report") with respect to such Mortgage Loan or Loan
Pair 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 and any
negotiations with the related Borrower;
(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 Mortgage Loan or Loan Pair and whether outside legal
counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to
the Servicer for regular servicing or otherwise realized upon;
(v) the appraised value of the Mortgaged Property together with
the assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
Subject to Section 3.31, if within 10 Business Days of receiving
an Asset Status Report, the Directing Certificateholder (or in the case of a
Loan Pair, the related Companion Holder or Operating Advisor acting on its
behalf) 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 (or related Companion Holder or
Operating Advisor) disapproves such Asset Status Report within such 10 Business
Day-period, the Special Servicer will revise such Asset Status Report and
deliver to the Directing Certificateholder, the related Companion Holder and its
Operating Advisor (if any), the Rating Agencies and the Servicer a new Asset
Status Report as soon as practicable, but in no event later than 10 Business
Days after such disapproval. The Special Servicer shall revise such Asset Status
Report as described above in this Section 3.26(f) until the Directing
Certificateholder (or related Companion Holder or Operating Advisor) shall fail
to disapprove such revised Asset Status Report in writing within 10 Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. In any event, if the Directing
Certificateholder (or related Companion Holder or Operating Advisor) does not
approve an Asset Status Report within 60 Business Days from the first submission
of an Asset Status Report, the Special Servicer may act upon the most recently
submitted form of Asset Status Report where required to comply with the
Servicing Standard. The Directing Certificateholder (or related Companion Holder
or Operating Advisor) is required to act as promptly as possible in order to
finalize the 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 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 if a Loan Pair is involved, the related Companion Holder (or Operating
Advisor acting on its behalf) and it has made a reasonable effort to contact the
Directing Certificateholder and if a Loan Pair is involved, the related
Companion Holder (or Operating Advisor acting on its behalf) and (ii) in any
case, shall determine whether such affirmative disapproval is inconsistent with
the Servicing Standard. Except as provided in the preceding sentence, the
Special Servicer shall not take any of the actions set forth in the preceding
sentence unless such actions were contemplated by an Asset Status Report that
has been approved or deemed approved as provided in this Section.
The Special Servicer shall have the authority to meet with the
Borrower 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 or if a Loan Pair
is involved, the related Companion Holder (or Operating Advisor acting on its
behalf) 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 of the Loan REMICs,
the Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result in the imposition
of a "prohibited transaction" or "contribution" tax under the REMIC Provisions,
or (c) expose the Servicer, the Special Servicer, the Depositor, the Mortgage
Loan Sellers, the Trust Fund, the Trustee, the Bond Administrator, the Companion
Holders and their Operating Advisors, or their officers, directors, employees,
agents or "control persons" within the meaning assigned to such term in the Act,
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.
(g) The Servicer may, with the consent of the Special
Servicer, the Directing Certificateholder and in the case of a Loan Pair, the
related Companion Holder, effect a one-time extension of a Mortgage Loan as to
which the related Borrower has failed to make a Balloon Payment as and when due
without transferring such Mortgage Loan to the Special Servicer and without such
Mortgage Loan constituting a Specially Serviced Loan, for a period not to exceed
the lesser of 180 days and the expiration of a written commitment to refinance
such Mortgage Loan, so long as such Borrower has provided the Servicer with a
written commitment to refinance such Mortgage Loan; provided, however, that such
Mortgage Loan shall become a Specially Serviced Loan if the Borrower fails to
pay its Balloon Payment on the date required by the terms of such extension.
(h) Notwithstanding anything herein to the contrary, in
connection with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Loan as a result of a Servicing Transfer Event or the
re-assumption of servicing responsibilities by the Servicer with respect to any
such Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Servicer and
the Special Servicer shall each transfer to the other, as and when applicable,
the servicing of all other Cross-Collateralized Loans constituting part of the
same Cross-Collateralized Group; provided that no Cross-Collateralized Loan may
become a Corrected Mortgage Loan at anytime that a continuing Servicing Transfer
Event exists with respect to another Cross-Collateralized Loan in the same
Cross-Collateralized Group.
Section 3.27 Approval Rights by the Special Servicer with Respect
to Non-Specially Serviced Loans. In addition to its rights and obligations with
respect to Specially Serviced Loans, the Special Servicer has the right to
approve any modification, waiver, amendment or other action contemplated by
Section 3.30(a), whether or not the applicable Mortgage Loan or Loan Pair is a
Specially Serviced Loan, to the extent described in Section 3.30 hereof and to
approve any waivers of due-on-encumbrance clauses as described in Section 3.09
hereof whether or not the applicable Mortgage Loan or Loan Pair is a Specially
Serviced Loan, but subject to Sections 3.29 and 3.31. With respect to
non-Specially Serviced Loans, the Servicer shall promptly notify the Special
Servicer of any request for approval (a "Request for Approval") received
relating to a matter as to which the Special Servicer's has approval rights. The
Special Servicer shall have 10 Business Days following the receipt of such
notice to analyze and make a recommendation with respect to a Request for
Approval with respect to a non-Specially Serviced Loan and, immediately
following such 10 Business Day period, is required to notify the Directing
Certificateholder or if a Loan Pair is involved, the related Companion Holder
(or Operating Advisor acting on its behalf) of such Request for Approval and its
recommendation with respect thereto (an "Approval Report"). Following the giving
of such notice, the Directing Certificateholder or if a Loan Pair is involved,
the related Companion Holder (or Operating Advisor acting on its behalf) will
have 10 Business Days following the receipt of such notice to analyze and
approve or disapprove any Approval Report. If within 10 Business Days of
receiving an Approval Report, the Directing Certificateholder or if a Loan Pair
is involved, the related Companion Holder (or Operating Advisor acting on its
behalf) does not disapprove such Approval Report in writing, the Special
Servicer shall implement the recommended action as outlined in such Approval
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 or if a Loan Pair is involved, the
related Companion Holder (or Operating Advisor acting on its behalf) disapproves
such Approval Report within such 10 Business Day-period, the same actions shall
be taken with respect to such Approval Report as if such Approval Report were an
Asset Status Report pursuant to Section 3.26(f). In any event, if the Directing
Certificateholder or if a Loan Pair is involved, the related Companion Holder
(or Operating Advisor acting on its behalf) does not respond to a Request for
Approval within the required 10 Business Days, the Special Servicer may deem its
recommendation approved by the Directing Certificateholder or if a Loan Pair is
involved, the related Companion Holder (or Operating Advisor acting on its
behalf). With respect to a Specially Serviced Loan, the Special Servicer shall
use the Asset Status Report procedures set forth in Section 3.26(f) to address
requests for approvals of Modifications or waivers of due-on-encumbrance
clauses.
Section 3.28 Limitations on and Authorizations of the Servicer
and Special Servicer with Respect to Certain Mortgage Loans. (a) Prior to
taking any action with respect to a Mortgage Loan or Loan Pair secured by
Mortgaged Properties located in a "one-action" state, the Servicer or Special
Servicer, as applicable, shall consult with legal counsel, the fees and expenses
of which shall be an expense of the Trust Fund and if a Loan Pair is involved,
the related Companion Holder.
(b) With respect to any Mortgage Loan or Loan Pair which
permits the related Borrower, with the consent or grant of a waiver by
mortgagee, to incur additional indebtedness or to amend or modify the related
Borrower's organizational documents, then the Special Servicer may only consent
to either such action, or grant a waiver with respect thereto, if the Special
Servicer determines that such consent or waiver is likely to result in a greater
recovery on a present value basis (discounted at the related Mortgage Rate or,
in the case of a Loan Pair, at the weighted average of the Mortgage Rates for
such Loan Pair) than would not consenting to such action, and the Special
Servicer first obtains written confirmation from each Rating Agency that such
consent or grant of a 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, any such action.
(c) [Intentionally Left Blank].
(d) With respect to all Mortgage Loans or Loan Pairs that
provide that the holder of the related Note may apply the Monthly Payment
against principal, interest and any other sums due in the order as the holder
shall determine, the Servicer shall apply such Monthly Payment to interest
(other than Excess Interest or Default Interest) under the related Mortgage Loan
or Loan Pair prior to application to principal or any other sums due.
(e) With respect to the Mortgage Loans or Loan Pairs that have
Anticipated Repayment Dates, the Servicer (including the Servicer in its
capacity as a Certificateholder, if applicable), 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 Maturity Date of the related Mortgage Loan or Loan Pair.
(f) To the extent not inconsistent with the related Mortgage
Loan or Loan Pair, the Servicer shall not consent to a change of franchise
affiliation with respect to a Mortgaged Property unless it obtains written
confirmation from Fitch and S&P that such consent would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then-current ratings
assigned to the Certificates.
(g) Subject to Section 4.01(e) with respect to the Mortgage
Loans or Loan Pairs that have Anticipated Repayment Dates, the Servicer shall be
permitted, in its discretion, to waive all or any accrued Excess Interest if,
prior to the related Maturity Date, the related Borrower has requested the right
to prepay the Mortgage Loan or Loan Pair in full together with all payments
required by the Mortgage Loan in connection with such prepayment except for all
or a portion of accrued Excess Interest, provided that the Servicer's
determination to waive the right to such accrued Excess Interest is reasonably
likely to produce a greater payment to Certificateholders (and, if a Loan Pair,
the related Companion Holder) on a present value basis than a refusal to waive
the right to such Excess Interest. Any such waiver shall not be effective until
such prepayment is tendered. The Servicer will have no liability to the Trust
Fund, the Certificateholders or any other Person so long as such determination
is based on such criteria. Other than pursuant to Section 3.30, the Special
Servicer shall have no right to waive the payment of Excess Interest under the
circumstances described in this Section 3.28(g).
(h) With respect to the Mortgage Loans or Loan Pairs 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 mortgagee 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 Mortgage Loan or Loan Pair
and in the amount, in the case of 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 shall be subject to confirmation by Fitch that
such determination not to purchase such insurance will not result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates rated by Fitch.
(i) The Servicer shall send written notice to each Borrower
and the related Manager and clearing bank that, if applicable, the Servicer
and/or the Trustee has been appointed as the "Designee" of the "Lender" under
any related Lock-Box Agreement.
(j) [Intentionally Left Blank].
(k) [Intentionally Left Blank].
(l) [Intentionally Left Blank].
(m) If any Mortgage Loan or Loan Pair provides that the
"Lender" with respect thereto is required to purchase U.S. government
obligations on behalf of the related Borrower in connection with any defeasance
of the related Note, the Servicer shall purchase such obligations and effectuate
such defeasance, at the Borrower's expense, in accordance with the provisions of
the related Loan Documents, consistent with the Servicing Standard; provided
that in no event may the Servicer effect such defeasance or accept a cash
payment prior to the identification of such obligations.
(n) The Servicer shall promptly provide notice to the
"licensor" or "franchisor" with respect to the Mortgaged Properties that are
hotel properties to the effect that the related Mortgage Loan has been assigned
to the Trust Fund. In so doing, the Servicer shall include in such notices the
information specified in the related "comfort" or "estoppel" letters executed by
the related "licensor or "franchisor". The Trustee shall cooperate with Servicer
in furnishing any information required to be include in such notices.
(o) The Servicer (together with its employees, officer and
directors) shall not utilize the proprietary and nonpublic information that it
becomes aware of in servicing the Mortgage Loans or Companion Loans to render
advice in connection with, solicit, or otherwise participate in the refinancing
of any Mortgage Loans or Companion Loans (whether at maturity or otherwise,
unless the related Mortgage Loan Seller confirms in writing that it will not
pursue the refinancing of such Mortgaged Property). Neither the Servicer nor the
Special Servicer shall make its mortgage loan servicing system available to the
Servicer's or the Special Servicer's affiliates engaged in the commercial
mortgage origination business for the purpose of soliciting additional lending
business.
(p) [Intentionally Left Blank].
(q) [Intentionally Left Blank].
(r) [Intentionally Left Blank].
(s) Without limiting the obligations of the Servicer hereunder
with respect to the enforcement of a Borrower's obligations under the related
Loan Documents, the Servicer agrees that it shall enforce the provisions of the
Loan Documents with respect to the collection of Prepayment Premiums.
(t) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation hereunder that a proposed action will not
result in the downgrade, withdrawal, or qualification of any rating assigned to
any Class of Certificates, the Servicer shall require the related Borrower to
pay such fee to the full extent permitted under the applicable Loan Documents.
In the event that such fee remains unpaid, such fee shall be an expense of the
Trust Fund and the Companion Holders (allocated as an Additional Trust Fund
Expense pro rata based on Stated Principal Balances and principal balances of
the Companion Loans, respectively), the costs of which may be advanced as a
Property Advance.
(u) The Servicer and the Special Servicer shall administer the
Loan Pairs in accordance with the related Co-Lender Agreements. The Servicer
shall cause duplicate copies of all notices that are required to be delivered by
a Borrower under the related Loan Documents to be sent to the related Companion
Holder.
Section 3.29 Limitations on Rights of Controlling Class or
Directing Certificateholder with Respect to the Loan Pairs. Notwithstanding
anything to the contrary in this Agreement, unless a Control Appraisal Event
shall exist and be continuing with respect to a Loan Pair, the Controlling Class
or the Directing Certificateholder, as applicable, will not be entitled to
exercise any of the rights and powers of the Controlling Class or the Directing
Certificateholder, as applicable, set forth herein, with respect to the
Companion Loan or the Mortgage Loan in such Loan Pair and instead the Companion
Holder will be entitled to appoint an Operating Advisor pursuant to Section 3.31
to exercise similar rights with respect to that Loan Pair. If the holder of a
Companion Loan replaces the Special Servicer, the replacement Special Servicer
will act as a Special Servicer only as to that Companion Loan and the related
Mortgage Loan, and the replaced Special Servicer will continue to act as Special
Servicer for the remainder of the Mortgage Loans. If at any time a Companion
Holder becomes either the Borrower or an affiliate thereof, such Companion
Holder shall have no further rights under this Agreement or the related
Co-Lender Agreement to control, direct, prohibit or be consulted with respect to
the enforcement of the related Mortgage or the servicing and administration of
the Loan Pair; provided, that the foregoing shall not be deemed to negate the
requirement for such Companion Holder's consent to any amendment or other
modification of this Agreement or the related Co-Lender Agreement, or to affect
the right of the Companion Holder to purchase the related Mortgage Loan pursuant
to the related Co-Lender Agreement or (to the extent permitted hereunder) take
actions (other than enforcement) with respect to its Note, or to affect the
rights of the Borrower under the Loan Documents.
The Servicer, the Special Servicer and the Bond Administrator
shall treat a Companion Holder as the Person entitled to give directions with
respect to its Companion Loan unless such Companion Holder selects an Operating
Advisor to act on its behalf, as certified to the Bond Administrator from time
to time; provided, however, that (i) absent such selection, or (ii) until an
Operating Advisor is so selected and the Servicer, Special Servicer and the Bond
Administrator are so notified, or (iii) upon receipt of a notice from such
Companion Holder that an Operating Advisor is no longer designated to act on its
behalf, the Bond Administrator shall treat such Companion Holder as the Person
entitled to give directions with respect to its Companion Loan; provided,
further, that in order for the Bond Administrator to certify the status of an
Operating Advisor with respect to a Companion Loan, the Companion Holder must
provide notice and certification to the Bond Administrator as to its designation
of an Operating Advisor. In the event that the Bond Administrator is unable to
verify the status of the Operating Advisor, it shall provide written notice to
the related Companion Holder.
Section 3.30 Modification, Waiver, Amendment and Consents. (a)
The Special Servicer may agree to any modification, waiver or amendment of any
term of, forgive or defer interest on and principal of, capitalize interest on,
permit the release, addition or substitution of collateral securing any Mortgage
Loan or Loan Pair, and/or permit the release of the Borrower on or any guarantor
of any Mortgage Loan or Loan Pair and/or permit any change in the management
company or franchise with respect to any Mortgaged Property without the consent
of the Trustee, any Certificateholder (other than the Directing
Certificateholder) or any Companion Holder (other than, if applicable, the
related Companion Holder or its Operating Advisor), to the extent provided in
Sections 3.26 and 3.27, subject, however, to Section 3.29 and to each of the
following limitations, conditions and restrictions:
(i) other than as provided in Section 3.03 and 3.09, the Special
Servicer shall not agree to any modification, waiver or amendment of
any term of, or take any of the other acts referenced in this Section
3.30(a) with respect to, any Mortgage Loan or Loan Pair that would
affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Special
Servicer's good faith and reasonable judgment, materially impair the
security for such Mortgage Loan or Loan Pair or reduce the likelihood
of timely payment of amounts due thereon or materially alter,
substitute or increase the security for such Mortgage Loan or Loan Pair
(other than the alteration or construction of improvements thereon) or
any guaranty or other credit enhancement with respect thereto (other
than the substitution of a similar commercially available credit
enhancement contract); provided, however, that the Special Servicer may
agree to any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.30(a) with respect
to a Specially Serviced Loan that would have any such effect, but only
if, in the Special Servicer's reasonable and good faith judgment, a
material default on such Mortgage Loan has occurred or a default in
respect of payment on such Mortgage Loan or Loan Pair is reasonably
foreseeable, and such modification, waiver, amendment or other action
is reasonably likely to produce a greater recovery to
Certificateholders and in the case of a Loan Pair, the related
Companion Holder, as a collective whole, on a present value basis, than
would liquidation. Any such action taken by the Special Servicer, as
applicable, shall be accompanied by an Officers' Certificate to such
effect and to which is attached the present value calculation which
establishes the basis for such determination, a copy of which shall be
delivered to the Bond Administrator, the related Companion Holder (if
any) and to the Rating Agencies;
(ii) the Special Servicer may not extend the Maturity Date of any
Mortgage Loan beyond the date that is two years prior to the Rated
Final Distribution Date, or, in the case of a Mortgage Loan secured by
the related Borrower's interest in a ground lease, the date that is 10
years prior to the maturity date of such lease;
(iii) the Special Servicer shall not make or permit any
modification, waiver or amendment of any term of any Mortgage Loan that
is not in default or with respect to which default is not reasonably
foreseeable that would (A) be a "significant modification" of such
Mortgage Loan within the meaning of Treasury Regulations Section
l.860G-2(b) or (B) cause any Mortgage Loan to cease to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code
(provided, that the Special Servicer shall not be liable for decisions
made under this subsection which were made in good faith and, unless it
would constitute bad faith or negligence to do so, in reliance on
Opinions of Counsel who is Independent of the Special Servicer);
(iv) the Special Servicer shall not permit any Borrower to add or
substitute any collateral for an outstanding Mortgage Loan or Loan
Pair, which collateral constitutes real property, unless (A) the
Special Servicer shall have first determined, in its reasonable and
good faith judgment, based upon a Phase I environmental assessment (and
such additional environmental testing as the Special Servicer deems
necessary and appropriate) prepared by an Independent Person who
regularly conducts environmental assessments (and such additional
environmental testing), at the expense of the related Borrower, that
such additional or substitute collateral is in compliance with
applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials
for which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then-applicable environmental
laws and/or regulations, and (B) such addition and/or substitution
would not result in the downgrade, qualification or withdrawal of the
rating then assigned by any Rating Agency to any Class of Certificates
(as confirmed in writing by each Rating Agency); and
(v) the Special Servicer shall not release or substitute any
collateral securing an outstanding Mortgage Loan or Loan Pair except as
provided in Section 3.10(i) and except in the case of a release where
(A) the use of the collateral to be released will not, in the Special
Servicer's good faith and reasonable judgment, materially and adversely
affect the net operating income being generated by or the use of the
related Mortgaged Property, (B) except in the case of the release of
non-material parcels, there is a corresponding principal paydown of
such Mortgage Loan or Loan Pair in an amount at least equal to, or a
delivery of substitute collateral with an appraised value at least
equal to, the appraised value of the collateral to be released, (C) the
remaining Mortgaged Property and any substitute collateral is, in the
Special Servicer's good faith and reasonable judgment, adequate
security for the remaining Mortgage Loan or Loan Pair and (D) such
release and/or substitution would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates (as confirmed in writing by each
Rating Agency);
provided that notwithstanding clauses (i) through (v) above, the Special
Servicer shall not be required to oppose the confirmation of a plan in any
bankruptcy or similar proceeding involving a Borrower if in its reasonable and
good faith judgment such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar. The Special Servicer may
not extend the Maturity Date on any Mortgage Loan or Loan Pair except pursuant
to this Section 3.30(a) or as otherwise required under the related Loan
Documents.
(b) The Special Servicer shall not have any liability to the
Trust Fund, the Certificateholders, any Companion Holder or any other Person if
its analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.30(a) is reasonably likely to produce a greater
recovery to Certificateholders and in the case of a Loan Pair, the related
Companion Holder, as a collective whole, on a present value basis than would
liquidation, should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith by the Special
Servicer, and the Special Servicer was not negligent in ascertaining the
pertinent facts.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan or Companion Loan, notwithstanding that the terms of such Mortgage
Loan or Companion Loan or such modification, waiver or amendment so permit.
(d) Except for waivers of penalty charges and notice periods,
all material modifications, waivers and amendments of the Mortgage Loans or
Companion Loans entered into pursuant to this Section 3.30 shall be in writing.
(e) The Special Servicer shall notify the Bond Administrator
and any related Companion Holder in writing, of any modification, waiver,
material consent or amendment of any term of any Mortgage Loan or Loan Pair and
the date thereof, and shall deliver to the Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver, material consent or amendment, promptly (and in any event
within 10 Business Days) following the execution thereof.
(f) The Special Servicer may (subject to the Servicing
Standard), as a condition to granting any request by a Borrower 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 Mortgage Loan or Loan Pair and is permitted
by the terms of this Agreement and applicable law, require that such Borrower
pay to it (i) as additional servicing compensation, a reasonable and 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 Borrower.
(g) Subject to Sections 3.29 and 3.31, the Directing
Certificateholder shall have the rights set forth in Sections 3.26 and 3.27
hereof with respect to any modification, waiver, amendment or other action
contemplated by Section 3.30(a). The Directing Certificateholder shall have no
duty to act in the interests of any Class other than the Controlling Class.
(h) Each Companion Holder shall have the rights set forth in
Sections 3.29 and 3.31 with respect to any modification, waiver, amendment or
other action contemplated by Section 3.30(a).
(i) Notwithstanding the foregoing provisions of this Section
3.30, with respect to the Crowne Plaza Loan Pair and for so long as the Crowne
Plaza Loan Pair is subject to this Agreement, in the event that a restructuring
by the guarantor under the Crowne Plaza Loan Pair or such guarantor's
bankruptcy, insolvency or similar proceeding, admission in writing of its
inability to pay its debts as they come due or assignment for the benefit of its
creditors results in the occurrence of a Mortgage Loan Event of Default under
the related Loan Documents but only for so long as no other Mortgage Loan Event
of Default then exists and is continuing under the related Loan Documents, no
Default Interest shall be chargeable in respect thereof. All other rights,
powers and remedies under such Loan Documents shall remain in full force and
effect, without any modification thereof.
Section 3.31 Right to Appoint Operating Advisor; Authority of
Operating Advisor.
(a) With respect to any Loan Pair, the Companion Holder shall
have the right at any time to appoint an Operating Advisor with respect to such
Loan Pair by giving written notice thereof to the Bond Administrator, the
Servicer and the Special Servicer, unless the Companion Holder or an Affiliate
of the Companion Holder is the Mortgage Loan Borrower or the Special Servicer.
The Companion Holder shall have the right in its sole discretion from time to
time to remove and replace the Operating Advisor for the related Loan Pair. Any
Operating Advisor appointed by a Companion Holder shall be automatically removed
in the event that such Companion Holder or an Affiliate of such Companion Holder
becomes the Mortgage Loan Borrower or the Special Servicer under the related
Loan Pair. Except as otherwise agreed with the related Companion Holder, no such
Operating Advisor shall owe any fiduciary duty to the Trustee, the Bond
Administrator, the Paying Agent, the Servicer, the Special Servicer, any
Certificateholder or any other Companion Holder.
(b) Notwithstanding anything to the contrary contained herein
(but subject to Section 3.31(c)), so long as a Control Appraisal Event has not
occurred with respect to a Loan Pair, at all times when an Operating Advisor is
serving during a Special Servicing Period with respect to such Loan Pair, the
Special Servicer shall be required (A) to consult with the related Operating
Advisor with respect to proposals to take any of significant action with respect
to such Loan Pair and the related Mortgaged Property and to consider alternative
actions recommended by such Operating Advisor and (B) prior to taking any of the
following actions, to notify in writing the related Operating Advisor of any
proposal to take any of such actions (and to provide such Operating Advisor with
such information requested by such Operating Advisor as may be necessary in the
reasonable judgment of such Operating Advisor in order make a judgment) and to
receive the written approval of such Operating Advisor (but subject to Section
3.26(f) with respect to any actions which necessitate the delivery of an Asset
Status Report):
(i) any modification of, or waiver with respect to, such Loan
Pair that would result in the extension of the Maturity Date thereof, a
reduction in the Interest Rate borne thereby or the Monthly Payment or
Prepayment Premium payable thereon or a forgiveness of interest on or
principal of such Loan Pair;
(ii) any foreclosure upon or comparable conversion (which may
include acquisition of a Foreclosed Property) of the ownership of the
Mortgaged Property or any acquisition of the related Mortgaged Property
by deed-in-lieu of foreclosure;
(iii) any sale of the related Mortgaged Property or an REO
Property;
(iv) any action to bring the related Mortgaged Property or REO
Property into compliance with any laws relating to Hazardous Materials;
(v) any substitution or release of collateral for such Loan Pair
(other than a substitution or release permitted to be made by the terms
of such Loan Pair without the consent of the mortgagee);
(vi) any legal action to enforce the related Loan Documents; or
(vii) any waiver or release of a material claim, right or remedy
with respect to such Loan Pair;
provided, that, (A) in the event that the related Operating Advisor fails to
notify the Special Servicer of its approval or disapproval of any such proposed
action within 10 Business Days of delivery to such Operating Advisor by the
Special Servicer of written notice of such a proposed action, such action by the
Special Servicer shall be deemed to have been approved by such Operating Advisor
and (B) with respect to any of the foregoing actions which necessitate the
delivery of an Asset Status Report pursuant to Section 3.26(f), such action
shall be taken in accordance with the procedures specified in such Section.
(c) Notwithstanding any direction to, or approval or
disapproval of an action of, the Servicer or the Special Servicer by the
Operating Advisor with respect to a Loan Pair, in no event shall the Servicer or
the Special Servicer take any action or refrain from taking any action which
would violate any law of any applicable jurisdiction, be inconsistent with the
Servicing Standard or violate any other provisions of this Agreement or of the
related Loan Documents.
(d) So long as a Control Appraisal Event has not occurred, at
all times when an Operating Advisor is serving with respect to a Loan Pair, the
Servicer and the Special Servicer shall provide to such Operating Advisor (i)
promptly following receipt of actual knowledge thereof, notice of any Mortgage
Loan Event of Default with respect to the related Loan Pair and (ii) within five
Business Days of receipt thereof, copies of any financial statements or other
reports with respect to the related Borrower or Mortgaged Property that were
delivered to the Servicer or the Special Servicer pursuant to the terms of the
related Loan Documents. At all times that the related Mortgage Loan or Loan Pair
is a Specially Serviced Loan, within five Business Days of receipt thereof, the
Special Servicer shall provide to the related Companion Holder by hard copy or
electronic means, copies of all correspondence with respect to the related
Borrower or Mortgaged Property that were delivered to the Special Servicer and
copies of any appraisals obtained. Promptly following receipt of notice of the
appointment of any Operating Advisor, the Bond Administrator shall notify the
Servicer and the Special Servicer in writing of the identity and address of any
Operating Advisor.
In addition, with respect to any proposed action requiring
consultation with or approval of an Operating Advisor pursuant to Section
3.31(b), the Special Servicer shall prepare a summary of such proposed action
and an analysis of whether or not such action is reasonably likely to produce a
greater recovery on a present value basis than not taking such action, setting
forth the basis on which the Special Servicer made such determination.
(e) Notwithstanding any direction to, or approval or
disapproval of, or right to give direction to or to approve or disapprove, an
action of, the Servicer or a Special Servicer by the related Operating Advisor,
in no event shall the Servicer or any Special Servicer take any action or
refrain from taking any action which would violate any law of any applicable
jurisdiction, be inconsistent with the Servicing Standard, violate the REMIC
Provisions or violate any other provisions of the related Co-Lender Agreement or
any provision of this Agreement. The taking, or refraining from taking, of any
action by the Servicer or the Special Servicer contrary to the directions of, or
in a manner disapproved by, the related Operating Advisor shall not constitute a
Servicer Event of Default or Special Servicer Event of Default so long as the
Servicer's or Special Servicer's taking, or refraining from taking, such action
in accordance with the direction of, or with the approval of, the Operating
Advisor would have violated any law of any applicable jurisdiction, would have
been inconsistent with the Servicing Standard, would have violated the REMIC
Provisions or would have violated any other provision of the related Co-Lender
Agreement or this Agreement.
(f) The Operating Advisor will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action or the giving of any consent, in good faith pursuant to this
Agreement, or for errors in judgment. By its acceptance of a Certificate, each
Certificateholder will be deemed to have confirmed its understanding that the
Operating Advisor may take or refrain from taking actions that favor the
interests of the related Companion Holder over the Certificateholders, and that
the Operating Advisor may have special relationships and interests that conflict
with the interests of the Certificateholders and, absent willful misfeasance,
bad faith or gross negligence on the part of the Operating Advisor, will be
deemed to have agreed to take no action against the Operating Advisor or any of
its officers, directors, employees, principals or agents as a result of such a
special relationship or conflict, and that the Operating Advisor will not be
deemed to have been grossly negligent or reckless, or to have acted in bad faith
or engaged in willful misfeasance or to have recklessly disregarded any exercise
of its rights by reason of its having acted or refrained from acting solely in
the interests of the related Companion Holder.
Section 3.32 Assignment of Right to Vote Claims of Companion
Holders in Bankruptcy.
The Companion Holders hereby confirm that pursuant to their
respective Co-Lender Agreements they have assigned to the Servicer the right to
vote all their claims, including the right the right to approve or reject any
plan of reorganization, in any bankruptcy, insolvency or other similar
proceedings, whether voluntary or involuntary, with respect to the related
Borrower on a Loan Pair. The Trustee, at the direction of the Special Servicer
(such direction and approval to be given in accordance with the Servicing
Standard and giving effect and due consideration to the rights of the holders of
each loan comprising a Loan Pair thereof and the obligation of the Servicer and
the Special Servicer to give due consideration to the maximization of recovery
on a present value basis in respect of such Loan Pair, shall represent the
rights of both the Trust Fund and the related Companion Holder in any such
proceedings. The Special Servicer and the Servicer shall be entitled to retain
counsel in connection with the giving of such directions and approvals. The fees
and disbursements of any such counsel shall constitute a Property Advance.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) (i) The initial Lower-Tier
Balances, Lower-Tier Balances as of any date subsequent to the first
Distribution Date, and Pass-Through Rate on each Class of Lower-Tier Regular
Interests shall be as set forth in the definition of "Lower-Tier Regular
Interest," "Lower-Tier Balance" and "Pass-Through Rate."
(ii) On each Distribution Date, amounts held in the Lower-Tier
Distribution Account shall be withdrawn (to the extent of the Available
Funds, including or reduced by, to the extent required by Section
3.05(c), the Interest Reserve Amount) in the case of all Classes of
Lower-Tier Regular Interests (such amount, the "Lower-Tier Distribution
Amount") and distributed on the Lower-Tier Regular Interests as
follows:
(1) to pay interest to the Upper-Tier REMIC in
respect of all Lower-Tier Regular Interests up to an
amount equal to all Uncertificated Distributable Interest
in respect of such Lower-Tier Regular Interests for such
Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates with such payments
allocated among the Lower-Tier Regular Interests such that
remaining amounts, if any, of unpaid interest on each such
Lower-Tier Regular Interest will equate to the remaining
unpaid accrued interest on the related Class of Principal
Balance Certificates or Class X Component outstanding
after all subsequent adjustments made on such Distribution
Date under Section 4.01(b) below;
(2) to pay principal to the Upper-Tier REMIC in
respect of all Lower-Tier Regular Interests apportioned as
payment in reduction of Lower-Tier Balances among such
classes of Lower-Tier Regular Interests such that the
remaining Lower-Tier Balance of each such class will equal
the then outstanding Certificate Balance of the
corresponding Class of Principal Balance Certificates
after all subsequent adjustments made on such Distribution
Date under Section 4.01(b) below (other than payments
thereunder in reimbursement of any Realized Losses); and
(3) to reimburse the Upper-Tier REMIC for any
Realized Losses previously allocated to the Lower-Tier
Regular Interests, apportioned among the classes of
Lower-Tier Regular Interests in the same manner that
reimbursements of Realized Losses are allocated among the
classes of Principal Balance Certificates as set forth in
Section 4.01(b) below.
On each Distribution Date, the Bond Administrator shall pay to
the Holders of the Class LR Certificates, in accordance with Section 4.01(b),
that portion, if any, of the Lower-Tier Distribution Amount for such date that
has not otherwise been paid to the Upper-Tier REMIC in respect of Lower-Tier
Regular Interests pursuant to the foregoing provisions of this Section 4.01(a).
On each Distribution Date, the Bond Administrator shall apply
amounts related to each Prepayment Premium then on deposit in the Lower-Tier
Distribution Account (other than the amount paid by GACC pursuant to the Wilton
Prepayment Premium Obligation) and received during or prior to the related
Collection Period, to the Lower-Tier Regular Interests in proportion to the
Lower-Tier Balances of the Lower-Tier Regular Interests outstanding after all
subsequent adjustments made on such Distribution Date under Section
4.01(a)(ii)(2).
The Bond Administrator shall deposit the Lower-Tier Distribution
Amount, any Prepayment Premiums distributed to the Upper-Tier REMIC pursuant to
this Section 4.01(a)(ii) and any amount paid by GACC pursuant to the Wilton
Prepayment Premium Obligation in the Upper-Tier Distribution Account.
(b) On each Distribution Date, the Bond Administrator shall
withdraw from the Upper-Tier Distribution Account the amounts deposited in the
Upper-Tier Distribution Account in respect of such Distribution Date pursuant to
Section 4.01(a)(ii), and distribute such amount to Certificateholders in the
amounts and in the order of priority set forth below:
(i) First, pro rata, in respect of interest, to the Class A-1,
Class A-2 and Class X Certificates, up to an amount equal to the
aggregate Interest Accrual Amounts of such Classes;
(ii) Second, pro rata, to the Class A-1, Class A-2 and Class X
Certificates, in respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously allocated to such
Classes;
(iii) Third, prior to the Crossover Date, to the Class A-1
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount until the Certificate
Balance of such Class is reduced to zero;
(iv) Fourth, prior to the Crossover Date, to the Class A-2
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is reduced to
zero;
(v) Fifth, on and after the Crossover Date, first to the Class
A-1 and Class A-2 Certificates, pro rata, in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balances thereof are reduced to zero; and second, to the Class A-1 and
Class A-2 Certificates, pro rata, to the extent not distributed
pursuant to all prior clauses for unreimbursed amounts of Realized
Losses, if any, an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Classes;
(vi) Sixth, to the Class B Certificates in respect of interest,
up to an amount equal to the aggregate Interest Accrual Amount of such
Class;
(vii) Seventh, to the Class B Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(viii) Eighth, to the Class B Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(ix) Ninth, to the Class B Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts
of Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(x) Tenth, to the Class C Certificates in respect of interest, up
to an amount equal to the aggregate Interest Accrual Amount of such
Class;
(xi) Eleventh, to the Class C Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xii) Twelfth, to the Class C Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xiii) Thirteenth, to the Class C Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts
of Realized Losses, if any, up to an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xiv) Fourteenth, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xv) Fifteenth, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xvi) Sixteenth, to the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xvii) Seventeenth, to the Class D Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xviii) Eighteenth, to the Class E Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xix) Nineteenth, to the Class E Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xx) Twentieth, to the Class E Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxi) Twenty-first, to the Class E Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxii) Twenty-second, to the Class F Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xxiii) Twenty-third, to the Class F Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxiv) Twenty-fourth, to the Class F Certificates in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the amount of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxv) Twenty-fifth, to the Class F Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxvi) Twenty-sixth, to the Class G Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xxvii) Twenty-seventh, to the Class G Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxviii) Twenty-eighth, to the Class G Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxix) Twenty-ninth, to the Class G Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxx) Thirtieth, to the Class H Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xxxi) Thirty-first, to the Class H Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxii) Thirty-second, to the Class H Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxxiii) Thirty-third, to the Class H Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxxiv) Thirty-fourth, to the Class J Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xxxv) Thirty-fifth, to the Class J Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxvi) Thirty-sixth, to the Class J Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxxvii) Thirty-seventh, to the Class J Certificates, to the
extent not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously allocated to
such Class;
(xxxviii) Thirty-eighth, to the Class K Certificates in respect
of interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xxxix) Thirty-ninth, to the Class K Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xl) Fortieth, to the Class K Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xli) Forty-first, to the Class K Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts
of Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xlii) Forty-second, to the Class L Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xliii) Forty-third, to the Class L Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xliv) Forty-fourth, to the Class L Certificates in reduction of
the Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xlv) Forty-fifth, to the Class L Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts
of Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xlvi) Forty-sixth, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(xlvii) Forty-seventh, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xlviii) Forty-eighth, to the Class M Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xlix) Forty-ninth, to the Class M Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(l) Fiftieth, to the Class N Certificates in respect of interest,
up to an amount equal to the aggregate Interest Accrual Amount of such
Class;
(li) Fifty-first, to the Class N Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lii) Fifty-second, to the Class N Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(liii) Fifty-third, to the Class N Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(liv) Fifty-fourth, to the Class O Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual
Amount of such Class;
(lv) Fifty-fifth, to the Class O Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lvi) Fifty-sixth, to the Class O Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(lvii) Fifty-seventh, to the Class O Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
and
(lviii) Fifty-eighth, to the Class R and Class LR Certificates.
All references to pro rata in the preceding clauses with respect
to interest and Class Interest Shortfalls shall mean pro rata based on the
amount distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) On each Distribution Date, following the distribution from
the Lower-Tier Distribution Account in respect of the Lower-Tier Regular
Interests pursuant to Section 4.01(a)(ii) or in respect of the Wilton Prepayment
Premium Obligation, the Paying Agent shall make distributions of any Prepayment
Premiums with respect to any Principal Prepayments received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(d) in the following amounts and order of priority, with
respect to the Certificates of each Class in each case to the extent remaining
amounts of Prepayment Premiums are available therefor: first, among the Holders
of the Class A, Class B, Class C, Class D and Class E Certificates (not in
reduction of the Certificate Balances thereof) and the Holders of the Class X
Certificates until the Certificate Balances of the Class A, Class B, Class C,
Class D and Class E Certificates have been reduced to zero, and second, between
the Holders of the Class F Certificates (not in reduction of the Certificate
Balances thereof) and the Holders of the Class X Certificates, until the
Certificate Balances of the Class F Certificates have been reduced to zero, in
each case in an aggregate amount up to the product of (a) such Prepayment
Premiums, (b) the Discount Rate Fraction and (c) the Principal Allocation
Fraction of each such Class. Any remainder of the Prepayment Premiums after the
Certificate Balances of the Class A, Class B, Class C, Class D, Class E and
Class F Certificates have been reduced to zero will be distributed 100% to the
Holders of the Class X Certificates.
The amount of any Prepayment Premium distributed in respect of
the Wilton Prepayment Premium Obligation shall be treated as distributed from
the Grantor Trust and not from the Upper-Tier REMIC.
Prepayment Premiums will only be distributed on a Distribution
Date (a) if the respective Certificate Balance or Notional Balance of the
related Class or Classes is greater than zero on the last Business Day of the
Interest Accrual Period ending immediately prior to such Distribution Date and
(b) if the amount computed pursuant to the related clause above is greater than
zero.
Notwithstanding the foregoing, Prepayment Premiums shall be
distributed on any Distribution Date only to the extent they are received in
respect of the Mortgage Loans in the related Collection Period.
(d) [Reserved]
(e) (i) On any applicable Distribution Date, the Net Default
Interest distributable to the Class Q-1 Certificates, as determined pursuant to
Section 3.05(e), for such Distribution Date shall be distributed to the Class
Q-1 Certificates from amounts on deposit in the Default Interest Distribution
Account.
(ii) On any applicable Distribution Date, the Excess Interest
allocable to the Mortgage Loans shall be distributed to the Class Q-2
Certificates from amounts on deposit in the Excess Interest
Distribution Account.
The Servicer may waive all or any accrued Excess Interest on any
Mortgage Loan or Loan Pair in connection with a prepayment in full of such
Mortgage Loan or Loan Pair prior to its maturity date, if the Servicer
determines that (1) in the absence of the waiver of such Excess Interest, there
is a reasonable likelihood that such Mortgage Loan or Loan Pair will not be paid
in full on its maturity date and (2) the waiver of such Excess Interest is
reasonably likely to produce a larger payment to the Certificateholders (and, if
a Loan Pair is involved, the related Companion Holder) on a present value basis
than a refusal to waive such Excess Interest; provided, that prior to effecting
such waiver, the Bond Administrator solicits the consent of the Holders of
Certificates representing at least a majority of the aggregate percentage
interests of the Class Q-2 Certificates in accordance with this Agreement and if
the Holders of Certificates representing at least a majority of the aggregate
percentage interests of the Class Q-2 Certificates object to such waiver within
30 days after notice thereof is given to them by the Bond Administrator, the
Servicer shall not effect such waiver unless failure to give such waiver would
be inconsistent with the Servicing Standard.
(f) On each Distribution Date, the Bond Administrator shall
withdraw amounts from the Excess Liquidation Proceeds Account and shall
distribute such amounts in the following priority:
(i) first, to reimburse the Holders of the Certificates (in the
order set forth in Section 4.01(b)) up to an amount equal to all
Realized Losses and Additional Trust Fund Expenses previously allocated
to each Class and unreimbursed after application of Available Funds for
such Distribution Date; and
(ii) second, to the Class LR Certificates.
(g) The Certificate Balances of each Class of Principal
Balance Certificates and, correlatively, the Notional Amount of the Class X
Component related to such Class of Regular Certificates will be reduced without
distribution on any Distribution Date as a write-off to the extent of any
Realized Losses allocated to such Class with respect to such date. Any such
write-offs will be applied to Classes of Regular Certificates in the following
order, in each case until the Certificate Balance of such Class is reduced to
zero: first, to the Class O Certificates; second, to the Class N Certificates;
third, to the Class M Certificates; fourth, to the Class L Certificates; fifth,
to the Class K Certificates; sixth, to the Class J Certificates; seventh, to the
Class H Certificates; eighth, to the Class G Certificates; ninth, to the Class F
Certificates; tenth, to the Class E Certificates; eleventh, to the Class D
Certificates; twelfth, to the Class C Certificates; thirteenth, to the Class B
Certificates; and finally, to the Class A-1 and Class A-2 Certificates, pro
rata, based on their respective Certificate Balances. Any amounts recovered in
respect of amounts previously written off as Realized Losses shall be
distributed to the Classes of Certificates described above in reverse order of
allocation of Realized Losses thereto in accordance with Section 4.01(b).
Additional Trust Fund Expenses and shortfalls in Available Funds due to
extraordinary expenses of the Trust Fund (including indemnification expenses), a
reduction in the Mortgage Rate on a Mortgage Loan by a bankruptcy court pursuant
to a plan of reorganization or pursuant to any of its equitable powers, or
otherwise, shall be treated as and allocated in the same manner as Realized
Losses.
Realized Losses and such other amounts described above which are
applied to each Class of Certificates will be allocated to reduce the Lower-Tier
Balance of the Lower-Tier Regular Interests in the same manner as principal is
allocated thereto pursuant to Section 4.01(a)(ii) and, with respect to the
Mortgage Loan that incurred such Realized Loss, the related Loan REMIC Regular
Interest.
(h) All amounts distributable to a Class of Certificates
pursuant to this Section 4.01 on each Distribution Date shall be allocated pro
rata among the outstanding Certificates in each such Class based on their
respective Percentage Interests. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date, by wire transfer of immediately available
funds to the account of such Holder at a bank or other entity located in the
United States and having appropriate facilities therefor provided that such
Holder shall have provided the Paying Agent with wire instructions in writing at
least five Business Days prior to the related Record Date, or, otherwise, by
check mailed by first class mail to the address set forth therefor in the
Certificate Register. The final distribution on each Certificate shall be made
in like manner, but only upon presentment and surrender of such Certificate at
the office of the Bond Administrator or its agent (which may be the Paying Agent
or the Certificate Registrar acting as such agent) that is specified in the
notice to Holders of such final distribution.
(i) Except as otherwise provided in Section 9.01 with respect
to an Anticipated Termination Date, the Bond Administrator shall, no later than
the fifteenth day of the month in the month preceding the month in which the
final distribution with respect to any Class of Certificates is expected to be
made, mail to each Holder of such Class of Certificates on such date a notice to
the effect that:
(A) the Bond Administrator reasonably expects based upon
information previously provided to it that the final distribution
with respect to such Class of Certificates will be made on such
Distribution Date, but only upon presentation and surrender of
such Certificates at the office of the Bond Administrator therein
specified, and
(B) if such final distribution is made on such
Distribution Date, no interest shall accrue on such Certificates
from and after such Distribution Date;
provided, however, that the Class Q-1, Class Q-2, Class R and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates, Lower-Tier Regular Interests or related Loan REMIC Regular
Interests outstanding.
Any funds not distributed to any Holder or Holders of such
Classes of Certificates 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 in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.0l(g) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining non-tendering Holders to surrender their
Certificates for cancellation to receive the final distribution with respect
thereto. If within one year after the second notice not all of such Certificates
shall have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
non-tendering Holders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such Holders shall be
paid out of such funds. If within two years after the second notice any such
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Bond Administrator all amounts distributable to the Holders
thereof, and the Bond Administrator shall thereafter hold such amounts for the
benefit of such Holders until the earlier of (i) its termination as Bond
Administrator hereunder and the transfer of such amounts to a successor Bond
Administrator and (ii) the termination of the Trust Fund and distribution of
such amounts to the Class R Certificateholders. No interest shall accrue or be
payable to any Holder on any amount held in trust hereunder or by the Bond
Administrator as a result of such Holder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). Any such amounts transferred to the Bond Administrator may be invested
in Permitted Investments and all income and gain realized from investment of
such funds shall be for the benefit of the Trustee.
(j) Shortfalls in Available Funds resulting from Excess
Prepayment Interest Shortfalls shall be allocated to and be deemed distributed
to, each Class of Certificates, pro rata, based upon the Interest Accrual Amount
distributable to each such Class prior to reduction by such Excess Prepayment
Interest Shortfalls. Servicer Prepayment Interest Shortfalls shall be deposited
by the Servicer into the Collection Account on or prior to the Servicer
Remittance Date.
(k) All payments made on the Mortgage Loans (or subsequently
acquired REO Property) which are assets of the Loan REMICs shall be deemed to be
paid to the Lower-Tier REMIC before payments are made to the holders of the
Lower-Tier Regular Interests pursuant to Section 4.01(a), and shall be treated
as principal, interest or Prepayment Premiums, as the case may be, based on
these characterizations with respect to the related Mortgage Loan (or REO
Property), except where expressly noted and, in addition, any payment of
principal on, or Realized Loss with respect to, a Loan REMIC Loan shall reduce
the principal balance of the related Loan REMIC Regular Interest. Any payments
on or with respect to the Mortgage Loans which are assets of the Loan REMICs in
excess of the principal, interest and Prepayment Premiums distributable on the
related Loan REMIC Regular Interest shall be distributable to the Class LR
Certificate in respect of amounts distributed on the related Loan REMIC Residual
Interest; provided, that Excess Liquidation Proceeds with respect to a Loan
REMIC Loan shall be deemed distributed to such Interest and immediately
deposited in the Excess Liquidation Proceeds Account.
(l) On each Distribution Date, the Companion Paying Agent
shall make withdrawals from the Companion Distribution Account for the related
Companion Loan (to the extent of the Available Companion Distribution Amount for
such Companion Loan) only for the following purposes (provided that the Servicer
shall have given the Companion Paying Agent instructions with respect to the
amounts to be withdrawn from the Companion Distribution Account and such other
information as the Companion Paying Agent shall have reasonably requested from
time to time in order to make such withdrawals, and provided further that so
long as the related Loan Pair is not a Specially Serviced Loan and all payments
in respect of a Due Date for such Loan Pair have been made in full, the
Companion Paying Agent, the Servicer and the related Companion Holder may make
alternative arrangements with respect to the distribution of amounts allocable
to such Companion Loan):
(A) to withdraw amounts deposited in such Companion
Distribution Account in error and pay such amounts to the Persons
entitled thereto;
(B) to withdraw and pay to itself or any of its directors,
officers, employees and agents, as the case may be, the amount of
any reimbursement due to it hereunder with respect to such
Companion Loan and not otherwise previously paid (including
without limitation pursuant to Section 8.11(d));
(C) to make payments to such Companion Holder of all other
amounts remaining in such Companion Distribution Account and
relating to its Companion Loan; and
(D) to clear and terminate such Companion Distribution
Account upon the termination of this Agreement.
All distributions from a Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the applicable
Companion Holder by wire transfer in immediately available funds to the account
of such Companion Holder or an agent therefore appearing on the Companion
Register on the related Record Date (or, if no such account so appears or
information relating thereto is not provided at least five Business Days prior
to the related Record Date, by check sent by first-class mail to the address of
such Companion Holder or its agent appearing on the Register). Any such account
shall be located at a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; Reports by Bond
Administrator; Other Information Available to the Holders and Others. (a) On
each Distribution Date, based upon the information set forth in the CMSA
Reporting Package prepared by the Servicer and the other reports prepared by the
Servicer and Special Servicer relating to such Distribution Date, upon which
information the Bond Administrator may conclusively rely, and only to the extent
such information is provided to the Bond Administrator by the Servicer or
Special Servicer, the Bond Administrator shall prepare and forward, or shall
cause the Paying Agent to prepare and forward, by first class mail to each
Holder of a Certificate, with copies to the Depositor, the Servicer, the Special
Servicer, each Underwriter, each Rating Agency and upon request, each
prospective investor in a Certificate, a written report (a "Distribution Date
Statement") 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 (other
than the Class X, Class Q-1, Class Q-2, Class R and Class LR
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) the Interest Accrual Amount and/or (B) Prepayment
Premiums;
(iii) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Certificates, before and
after giving effect to the distributions made on such Distribution
Date, separately identifying any reduction in the aggregate Certificate
Balance (or, if applicable, the aggregate Notional Balance) of each
such Class due to Realized Losses and/or Additional Trust Fund
Expenses;
(iv) the Pass-Through Rate for each Class of Certificates
applicable to such Distribution Date;
(v) the number of outstanding Mortgage Loans and the aggregate
unpaid principal balance of the Mortgage Loans at the close of business
on the related Due Date;
(vi) the number and aggregate unpaid principal balance of
Mortgage Loans (A) delinquent 30 days, (B) delinquent 60 days, (c)
delinquent 90 days or more, (D) that are Specially Serviced Loans that
are not delinquent, or (E) current, but not Specially Serviced, as to
which foreclosure proceedings have been commenced, but not REO;
(vii) 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 Mortgage Loan as of the date it became an REO Loan;
(viii) as to any Mortgage Loan repurchased by a Mortgage Loan
Seller or otherwise liquidated or disposed of during the related
Collection Period, (A) the Loan Number of the related Mortgage Loan and
(B) the amount of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any, received thereon
during the related Collection Period and the portion thereof included
in the Available Funds for such Distribution Date;
(ix) 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 Mortgage Loan, (B) the value of such REO Property based on
the most recent appraisal or valuation;
(x) with respect to any REO Property sold or otherwise disposed
of during the related Collection Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related
Mortgage Loan, (B) the Realized Loss attributable to such Mortgage
Loan, (C) the amount of sale proceeds and other amounts, if any,
received in respect of such REO Property during the related Collection
Period and the portion thereof included in the Available Funds for such
Distribution Date, (D) the date of the Final Recovery Determination and
(E) the balance of the Excess Liquidations Proceeds Account for such
Distribution Date;
(xi) the aggregate amount of Principal Prepayments (other than
Liquidation Proceeds and Insurance Proceeds) made during the related
Collection Period and any Excess Prepayment Interest Shortfall for such
Distribution Date;
(xii) the amount of Property Advances and P&I Advances
outstanding (net of reimbursed Advances) which have been made by the
Servicer, the Special Servicer or the Trustee in the aggregate and by
Mortgaged Property or Mortgage Loan, as the case may be;
(xiii) the aggregate amount of Servicing Fees, Special Servicing
Fees, Workout Fees, Liquidation Fees and other servicing compensation
retained by or paid to the Servicer and the Special Servicer during the
related Collection Period;
(xiv) the amount of any Appraisal Reduction Amounts allocated
during the related Collection Period on a loan-by-loan basis; the total
Appraisal Reduction Amounts allocated during the related Collection
Period; and the total Appraisal Reduction Amounts as of such
Distribution Date on a loan-by-loan basis; and
(xv) the amount of Realized Losses, Additional Trust Fund
Expenses and Class Interest Shortfalls, if any, incurred with respect
to the Mortgage Loans during the related Collection Period and in the
aggregate for all prior Collection Periods (except to the extent
reimbursed or paid).
In the case of information furnished pursuant to subclauses (i),
(ii) and (iii) 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 Bond Administrator shall 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 (including, in the case of the Class LR
Certificates, amounts distributed (or deemed distributed, in the case of Excess
Liquidation Proceeds) in respect of each Loan REMIC Residual Interest) on such
Distribution Date. Such obligation of the Bond Administrator shall be deemed to
have been satisfied to the extent that it provided substantially comparable
information pursuant to any requirements of the Code as from time to time in
force.
Within a reasonable period of time after the end of each calendar
year, the Bond Administrator shall 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 Fund.
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 each Distribution Date, the Bond Administrator shall
deliver or cause to be delivered by first class mail or overnight courier or by
electronic means (provided, however, that the Bond Administrator will provide
Certificateholders with a written copy of such report upon written request) to
each Certificateholder, each prospective investor in a Certificate (upon
request), the Depositor, the Servicer, the Special Servicer, each Underwriter
and each Rating Agency a report containing information regarding the Mortgage
Loans as of the end of the related Collection Period (after giving effect to
Principal Prepayments and other collections of principal required to be
distributed on such Distribution Date), which report shall contain substantially
the categories of information regarding the Mortgage Loans set forth in the
Prospectus under the caption "Description of the Mortgage Pool--Certain Terms
and Conditions of the Mortgage Loans" (calculated, where applicable, on the
basis of the most recent relevant information provided by the Borrowers to the
Servicer or the Special Servicer, as the case may be, and by the Servicer or the
Special Servicer, as the case may be, to the Bond Administrator), which shall
also include a loan-by-loan listing (in descending balance order) showing Loan
Number, property type, location, unpaid principal balance, Mortgage Rate,
paid-through date, maturity date, net interest portion of the Monthly Payment,
principal portion of the Monthly Payment and any Prepayment Premium.
(c) On each Distribution Date, the Bond Administrator shall
deliver or cause to be delivered by first class mail or overnight courier or by
electronic means (provided, however, that the Bond Administrator will provide
Certificateholders with a written copy of such report upon written request) to
each Certificateholders, each prospective investor in a Certificate (upon
request), the Depositor, the Servicer, the Special Servicer, each Underwriter
and each Rating Agency a report containing information regarding the Extended
Due Date Mortgage Loans (as well as all other Mortgage Loans) reflecting
collections of Monthly Payments received by the Servicer after the related
Determination Date but prior to the Servicer Remittance Date (which the Servicer
will provide to the Bond Administrator on the Servicer Remittance Date).
(d) On each Distribution Date beginning in November 2000, the
Bond Administrator shall deliver or shall cause to be delivered by first class
mail, overnight courier or other electronic means (provided, however, that the
Bond Administrator will provide Certificateholders with a written copy of such
report upon written request) to each Certificateholder, each prospective
investor in a Certificate (upon request), Beneficial Owner (if known), the
Depositor, each Underwriter and each Rating Agency a copy of the Comparative
Financial Status Report, the Delinquent Loan Status Report, the Historical
Liquidation Report, the Historical Loan Modification Report, the REO Status
Report and a Watch List (indicating those Mortgage Loans that the Servicer has
determined are in jeopardy of becoming Specially Serviced Loans) provided by the
Servicer to the Bond Administrator pursuant to Section 3.13(c) and 3.13(e) on
the Servicer Remittance Date. 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 four
Business Days prior to the related Servicer Remittance Date. Absent manifest
error, (i) none of the Servicer, the Special Servicer or the Bond Administrator
shall be responsible for the accuracy or completeness of any information
supplied to it by a Borrower or third party that is included in any reports,
statements, materials or information prepared or provided by the Servicer, the
Special Servicer or the Bond Administrator, as applicable, (ii) the Bond
Administrator shall not be responsible for the accuracy or completeness of any
information supplied to it by the Servicer or Special Servicer that is included
in any reports, statements, materials or information prepared or provided by the
Servicer or Special Servicer, as applicable, and (iii) the Bond Administrator
shall be entitled to conclusively rely upon the Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute, verify
or re-evaluate any of the amounts or other information stated therein.
Commencing in November 2000, the information contained in the
reports in the preceding paragraph of this Section 4.02(d) shall be made
available to the Bond Administrator electronically by the Servicer in the form
of, or reflected in, the standard CMSA Reporting Package and CMSA Reports and
the Bond Administrator will in lieu of mailing such reports as described in such
preceding paragraph make such reports available electronically in such form to
Certificateholders using the media mutually agreed upon by the Bond
Administrator, each Underwriter and the Depositor; provided, however, that the
Bond Administrator will continue to provide Certificateholders with a written
copy of such reports upon request in the manner described in such preceding
paragraph.
The Bond Administrator upon request shall deliver a copy of each
Operating Statement Analysis Report and NOI Adjustment Worksheet that it
receives from the Servicer or the Special Servicer to the Depositor, each
Underwriter, the Directing Certificateholder, each Rating Agency, the
Certificateholders and the Servicer or the Special Servicer (as applicable)
promptly after its receipt thereof. Upon request, the Bond Administrator shall
also make available any NOI Adjustment Worksheet for a Mortgaged Property or REO
Property in the possession of the Bond Administrator to any potential investor
in the Certificates.
(e) The Bond Administrator shall make available at its
offices, during normal business hours, upon not less than two Business Day's
prior notice, for review by any Certificateholder, any prospective investor in a
Certificate, the Depositor, the Servicer, the Special Servicer, the Trustee,
either Rating Agency and any other Person to whom the Depositor in its sole
judgment, deems that such disclosure is appropriate, originals or copies of
documents relating to the Mortgage 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): (i) this Agreement and any
amendments thereto; (ii) all Distribution Date Statements delivered to the
Certificateholders since the Closing Date; (iii) all annual Officers'
Certificates and all accountants' reports delivered by the Servicer and the
Special Servicer to the Bond Administrator since the Closing Date regarding
compliance with the relevant agreements; (iv) the most recent property
inspection report prepared by or on behalf of the Servicer or the Special
Servicer in respect of each Mortgaged Property; (v) the most recent annual (or
more frequent, if available) operating statements, rent rolls (to the extent
such rent rolls have been made available by the related Borrower) and/or lease
summaries and retail sales information, if any, collected by or on behalf of the
Servicer or the Special Servicer in respect to each Mortgaged Property; (vi) any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Servicer and/or the Special Servicer; and (vii) any and all
Officers' Certificates and other evidence delivered to the Bond Administrator to
support the Servicer's, the Special Servicer's or the Trustee's, as the case may
be, determination that any Advance, if made, would be a Nonrecoverable Advance.
Copies of any and all of the foregoing items will be available from the Bond
Administrator upon request. The Bond Administrator 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 Bond Administrator's obligation under this
Section 4.02(e) to make available any document is subject to the Bond
Administrator's receipt of such document.
If the Depositor so directs the Bond Administrator, and on terms
acceptable to the Bond Administrator, the Bond Administrator will make available
through its electronic bulletin board system, on a confidential basis, certain
information related to the Mortgage Loans. The bulletin board is located at
(714) 282-3990. Investors that have an account on the bulletin board may
retrieve the loan level data file for each transaction in the directory. An
account number may be obtained by typing "new" upon logging into the bulletin
board. A directory has been set up on the bulletin board in which an electronic
file is stored containing monthly servicer data. Passwords to each file will be
released by the Bond Administrator. Additionally, certain information regarding
the Mortgage Loans will be made available at the website maintained by the Bond
Administrator initially at www.lnbabs.com and, after the Certificates have been
sold by the Underwriters, at the website maintained by the Servicer at
www.orecm.com or such other mechanism as the Bond Administrator or the Servicer
may have in place from time to time.
(f) On or within two Business Days following each Distribution
Date, the Bond Administrator shall prepare and furnish to the Financial Market
Publisher and each Underwriter, using the format and media mutually agreed upon
by the Bond Administrator, the Financial Market Publisher, each Underwriter and
the Depositor, the following information regarding each Mortgage Loan and any
other information reasonably requested by each Underwriter and available to the
Bond Administrator:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Bond Administrator shall only be obligated to deliver the statements,
reports and information contemplated by Section 4.02 to the extent it receives
the necessary underlying information from the Servicer or the Special Servicer
and shall not be liable for any failure to deliver any thereof on the prescribed
due dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Bond Administrator, the Trustee,
the Servicer or the Special Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Borrower and the failure of the
Bond Administrator, the Servicer or the Special Servicer to disseminate
information for such reason shall not be a breach hereof.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent shall
comply with all federal withholding requirements with respect to payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is a non-U.S. Person that
has furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or
an acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(c) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
Section 4.04 REMIC Compliance. (a) The parties intend that each
of the Upper-Tier REMIC, the Lower-Tier REMIC and each Loan REMIC shall
constitute, and that the affairs of each of the Upper-Tier REMIC, the Lower-Tier
REMIC and each Loan REMIC shall be conducted so as to qualify it as, a "real
estate mortgage investment conduit" as defined in, and in accordance with, the
REMIC Provisions at all times any Certificates are outstanding, and the
provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Bond Administrator shall, to the extent
permitted by applicable law, act as agent, and is hereby appointed to act as
agent, of each Trust REMIC and shall on behalf of each Trust REMIC: (i) prepare
and file, or cause to be prepared and filed, all required Tax Returns for each
of the Trust REMICs, using a calendar year as the taxable year for each of the
Trust REMICs as required by the REMIC Provisions and other applicable federal,
state or local income tax laws; (ii) make an election, on behalf of each of the
Trust REMICs, to be treated as a REMIC on Form 1066 for its first taxable year,
in accordance with the REMIC Provisions; (iii) prepare and forward, or cause to
be prepared and forwarded, to the Certificateholders and the Internal Revenue
Service and applicable state and local tax authorities all information reports
as and when required to be provided to them in accordance with the REMIC
Provisions of the Code and Section 4.07; (iv) if the filing or distribution of
any documents of an administrative nature not addressed in clauses (i) through
(iii) of this Section 4.04(a) is then required by the REMIC Provisions in order
to maintain the status of each of the Trust REMICs as a REMIC or is otherwise
required by the Code, prepare and file or distribute, or cause to be prepared
and signed and filed or distributed, such documents with or to such Persons when
and as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Bond Administrator shall act as the representative of each of
the Trust REMICs for this purpose), together with such additional information as
may be required by such Form, and shall update such information at the time or
times and in the manner required by the Code (and the Depositor agrees within 10
Business Days of the Closing Date to provide any information reasonably
requested by the Servicer, the Special Servicer or the Bond Administrator and
necessary to make such filing); and (vi) maintain such records relating to each
of the Trust REMICs as may be necessary to prepare the foregoing returns,
schedules, statements or information, such records, for federal income tax
purposes, to be maintained on a calendar year and on an accrual basis. The
Holder of the largest Percentage Interest in the Class R Certificates shall be
the tax matters person of the Upper-Tier REMIC, and the Holder of the largest
Percentage Interest in the Class LR Certificates shall be the tax matters
persons of the Lower-Tier REMIC and each of the Loan REMICs, respectively,
pursuant to Treasury Regulations Section 1.860F-4(d). The Trustee shall,
promptly after receipt thereof from the Bond Administrator, sign all Tax Returns
and other reports required by this Section 4.04 and promptly return them to the
Bond Administrator for filing or as otherwise provided by this Section. If more
than one Holder shall hold an equal Percentage Interest in the Class R or Class
LR Certificates larger than that held by any other Holder, the first such Holder
to have acquired such Class R or Class LR Certificates shall be such tax matters
person. The Bond Administrator shall act as attorney-in-fact and agent for the
tax matters person of each of the Trust REMICs, and each Holder of a Percentage
Interest in the Class R or Class LR Certificates, by acceptance hereof, is
deemed to have consented to the Bond Administrator's appointment in such
capacity and agrees to execute any documents required to give effect thereto,
and any fees and expenses incurred by the Bond Administrator in connection with
any audit or administrative or judicial proceeding shall be paid by the Trust
Fund. The Bond Administrator shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Bond Administrator knows that such action or omission (as the case
may be) would cause the termination of the REMIC status of any of the Trust
REMICs or the imposition of tax on the Trust REMICs (other than a tax on income
expressly permitted to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph to the contrary, the Bond
Administrator shall not be required to take any action that the Bond
Administrator in good faith believes to be inconsistent with any other provision
of this Agreement, nor shall the Bond Administrator be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Bond Administrator shall have no
responsibility or liability with respect to any act or omission of the
Depositor, the Servicer or the Special Servicer which does not enable the Bond
Administrator to comply with any of clauses (i) through (vi) of the fifth
preceding sentence or which results in any action contemplated by clauses (i) or
(ii) of the next succeeding sentence. In this regard the Bond Administrator
shall (i) exercise reasonable care not to allow the occurrence of any
"prohibited transactions" within the meaning of Code Section 860F(a), unless the
party seeking such action shall have delivered to the Trustee and the Bond
Administrator an Opinion of Counsel (at such party's expense) that such
occurrence would not (A) result in a taxable gain, (B) otherwise subject any of
the Trust REMICs to tax (other than a tax at the highest marginal corporate tax
rate on net income from foreclosure property), or (c) cause any of the Trust
REMICs to fail to qualify as a REMIC; and (ii) exercise reasonable care not to
allow the Trust Fund to receive any contributions, or any income from the
performance of services or from assets not permitted under the REMIC Provisions
to be held by a REMIC (provided, however, that the receipt of any income
expressly permitted or contemplated by the terms of this Agreement shall not be
deemed to violate this clause). None of the Servicer, the Special Servicer and
the Depositor shall be responsible or liable (except in connection with any act
or omission referred to in the two preceding sentences or the following
sentence) for any failure by the Bond Administrator to comply with the
provisions of this Section 4.04. The Depositor, the Servicer and the Special
Servicer shall cooperate in a timely manner with the Bond Administrator in
supplying any information within the Depositor's, the Servicer's or the Special
Servicer's control (other than any confidential information) that is reasonably
necessary to enable the Bond Administrator to perform its duties under this
Section 4.04.
(b) The Bond Administrator shall administer each of the Loan
REMICs in accordance with the respective Loan REMIC Declarations and the REMIC
Provisions and shall comply with and perform all federal and, if applicable,
state and local income tax return and information reporting requirements with
respect to such Loan REMICs, and shall otherwise administer each of the Loan
REMICs in the same manner as specified for the Trust REMICs in Section 4.04(a).
Each of the Fairgrounds Square Loan and the Towne Square Apartments Loan shall
be serviced and administered in accordance with the provisions of Article III
hereof and the related Loan REMIC Declaration. The Bond Administrator shall
maintain separate accounting with respect to each of the Loan REMICs sufficient
(i) to comply with such return and information reporting requirements, including
quarterly and annual reporting on Schedule Q to Form 1066 to the holders of the
Class LR Certificates with respect to the Loan REMIC Residual Interests, (ii) to
account for the Loan REMIC Regular Interests as assets of the Lower-Tier REMIC,
(iii) to pay or cause to be paid any federal, state or local income tax
attributable to a Loan REMIC from payments received on or with respect to the
related Mortgage Loan, and (iv) to cause any payments on the related Mortgage
Loan in excess amounts distributable in respect of the related Loan REMIC
Regular Interests to be distributed in respect of the related Loan REMIC
Residual Interests.
(c) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Depositor and the
Class LR Certificateholders will exercise the right described in Section 9.01 of
this Agreement to cause early termination of the Trust Fund; and (iii) no
Mortgage Loan is repurchased by a Mortgage Loan Seller pursuant to Article II
hereof.
Section 4.05 Imposition of Tax on the Trust Fund. In the event
that any tax, including interest, penalties or assessments, additional amounts
or additions to tax, is imposed on the Upper-Tier REMIC, Lower-Tier REMIC or any
Loan REMIC, such tax shall be charged against amounts otherwise distributable to
the Holders of the REMIC Certificates; provided, that any taxes imposed on any
net income from foreclosure property pursuant to Code Section 860G(d) or any
similar tax imposed by a state or local jurisdiction shall instead be treated as
an expense of the related REO Property (and an expense of the Trust Fund not to
be charged against any of the income or proceeds from such REO Property which
are allocable to any Companion Loan) in determining Net REO Proceeds with
respect to the REO Property (and until such taxes are paid, the Special Servicer
from time to time shall withdraw from amounts in the REO Account allocable to
the Mortgage Loans and transfer to the Bond Administrator amounts reasonably
determined by the Bond Administrator to be necessary to pay such taxes, which
the Bond Administrator shall maintain in a separate, non-interest-bearing
account, and the Bond Administrator shall send to the Special Servicer for
deposit in the REO Account the excess determined by the Bond Administrator from
time to time of the amount in such account over the amount necessary to pay such
taxes) and shall be paid therefrom; provided that any such tax imposed on net
income from foreclosure property that exceeds the amount in any such reserve
shall be retained from Available Funds as provided in Section 3.06(d)(viii) and
the next sentence. Except as provided in the preceding sentence, the Bond
Administrator is hereby authorized to and shall retain or cause to be retained
from Available Funds sufficient funds to pay or provide for the payment of, and
to actually pay, such tax as is legally owed by the applicable Trust REMIC (but
such authorization shall not prevent the Bond Administrator from contesting, at
the expense of the Trust Fund, any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The Bond Administrator is hereby authorized to and shall
segregate or cause to be segregated, into a separate non-interest bearing
account, (i) the net income allocable to the Mortgage Loans from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to a Trust REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such tax
(and return the balance thereof, if any, to the Collection Account, the
Lower-Tier Distribution Account or the Upper-Tier Distribution Account, as the
case may be). To the extent that any such tax is paid to the Internal Revenue
Service, the Bond Administrator shall retain an equal amount from future amounts
otherwise distributable to the Holders of the Class R or the Class LR
Certificates, as the case may be, and shall distribute such retained amounts to
the Holders of Regular Certificates, or the Trustee as Holder of the Lower-Tier
Regular Interests or related Loan REMIC Regular Interest, as applicable, until
they are fully reimbursed and then to the Holders of the Class R Certificates or
the Class LR Certificates, as applicable. Neither the Servicer, the Special
Servicer nor the Bond Administrator shall be responsible for any taxes imposed
on the Trust REMICs except to the extent such tax is attributable to a breach of
a representation or warranty or the gross negligence or willful misconduct of
the Servicer, the Special Servicer or the Bond Administrator or an act or
omission of the Servicer, the Special Servicer or the Bond Administrator in
contravention of this Agreement, provided, further, that such breach, act or
omission could result in liability under Section 6.03, in the case of the
Servicer or Section 4.04 or 8.01, in the case of the Bond Administrator.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Trustee, the Servicer or the Special Servicer shall not be responsible for
Bond Administrator's breaches, acts or omissions, and the Bond Administrator
shall not be responsible for the breaches, acts or omissions of the Servicer or
the Special Servicer.
Section 4.06 Remittances; P&I Advances. (a) "Applicable Monthly
Payment" shall mean, for any Mortgage Loan with respect to any month, (A) if
such Mortgage Loan is delinquent as to its Balloon Payment (including any such
Mortgage Loan as to which the related Mortgaged Property has become an REO
Property), the related Assumed Scheduled Payment, and (B) if such Mortgage Loan
is not described in clause (A) above (including any such Mortgage Loan as to
which the related Mortgaged Property has become an REO Property), the Monthly
Payment (after giving effect to any modification other than as described in (A)
above); provided, however, that for purposes of calculating the amount of any
P&I Advance required to be made by the Servicer or the Trustee, notwithstanding
the amount of such Applicable Monthly Payment, interest shall be calculated at
the Net Mortgage Pass-Through Rate (plus the Trustee Fee Rate). The Applicable
Monthly Payment shall be reduced, for purposes of P&I Advances, by any
modifications pursuant to Section 3.30 or otherwise and by any reductions by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers.
(b) On the Servicer Remittance Date immediately preceding each
Distribution Date, the Servicer shall:
(i) remit to the Bond Administrator for deposit in the Lower-Tier
Distribution Account an amount equal to Prepayment Premiums, for
deposit into the Default Interest Distribution Account an amount equal
to Net Default Interest, for deposit into the Excess Interest
Distribution Account an amount equal to Excess Interest and for deposit
into the Excess Liquidation Proceeds Account an amount equal to Excess
Liquidation Proceeds, in each case received by the Servicer in the
Collection Period preceding such Distribution Date and net of amounts
allocable to the Companion Loans;
(ii) remit to the Bond Administrator for deposit in the
Lower-Tier Distribution Account an amount equal to the aggregate of the
Available Funds (other than P&I Advances) for such Distribution Date;
and
(iii) make a P&I Advance by depositing into the Lower-Tier
Distribution Account, in an amount equal to the sum of the Applicable
Monthly Payments for each Mortgage Loan to the extent such amounts were
not received on such Mortgage Loan as of the close of business on the
Business Day immediately preceding the Servicer Remittance Date or, in
the event of a default in the payment of amounts due on the maturity
date of a Mortgage Loan, the amount not received that was due prior to
the maturity date (and therefore are not included in the remittance
described in the preceding clause (ii)).
(c) [Intentionally Left Blank].
(d) [Intentionally Left Blank].
(e) Neither the Servicer nor the Trustee shall be required or
permitted to make a P&I Advance for Excess Interest or Default Interest or in
respect of principal and/or interest due on any Companion Loan. The Special
Servicer shall not be required or permitted to make any P&I Advance hereunder.
If it is determined that an Appraisal Reduction Amount exists with respect to
any such Mortgage Loan or REO Loan, then, in the event of subsequent
delinquencies thereon, the amount of the interest portion, but not the principal
portion, of each P&I Advance, if any, required to be made in respect of such
Mortgage Loan or REO Loan, as the case may be, during the period that such
Appraisal Reduction Amount continues to exist, shall be reduced to equal the
product of (i) the amount required to be advanced by the Servicer without giving
effect to such Appraisal Reduction Amounts and (ii) a fraction, the numerator of
which is the Stated Principal Balance of the Mortgage Loan (as of the last day
of the related Collection Period) less any Appraisal Reduction Amounts thereof
and the denominator of which is the Stated Principal Balance (as of the last day
of the related Collection Period).
(f) Any amount advanced by the Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Servicer shall be entitled to reimbursement (with interest at the
Advance Rate; provided, however, that no interest shall accrue and be payable on
any P&I Advances until the grace period for a late payment by the underlying
Borrower has expired) thereof to the full extent as otherwise set forth in this
Agreement.
(g) If as of 5:00 p.m., New York City time, on any Servicer
Remittance Date the Servicer shall not have made the P&I Advance required to
have been made on the related Servicer Remittance Date pursuant to Section
4.06(b)(iii), the Bond Administrator shall notify the Trustee and the Trustee
shall no later than 12:00 noon, New York City time, on the Distribution Date
deposit into the Lower-Tier Distribution Account in immediately available funds
an amount equal to the P&I Advances otherwise required to have been made by the
Servicer.
(h) Neither the Servicer nor the Trustee shall be obligated to
make a P&I Advance as to any Monthly Payment or Assumed Scheduled Payment on any
date on which a P&I Advance is otherwise required to be made by this Section
4.06 if the Servicer or the Trustee, as applicable, determines that such Advance
will be a Nonrecoverable Advance. The Servicer shall be required to provide
notice to the Trustee and the Bond Administrator on or prior to the Servicer
Remittance Date of any such non-recoverability determination made on or prior to
such date. The Trustee shall be entitled to rely, conclusively, on any
determination by the Servicer that a P&I Advance, if made, would be a
Nonrecoverable Advance; provided, however, that if the Servicer has failed to
make a P&I Advance for reasons other than a determination by the Servicer that
such Advance would be a Nonrecoverable Advance, the Trustee shall make such
Advance within the time periods required by Section 4.06(g) unless the Trustee
makes a determination prior to the times specified in Section 4.06(g) that such
Advance would be a Nonrecoverable Advance. The Trustee, in determining whether
or not a P&I Advance previously made is, or a proposed P&I Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Servicer hereunder.
(i) The Servicer or the Trustee, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent permitted
pursuant to Section 3.06(d)(ii) and Section 3.06(e)(ii) of this Agreement
together with any related Advance Interest Amount in respect of such P&I
Advances to the extent permitted pursuant to Section 3.06(d)(iii) and Section
3.06(e)(iii) and the Servicer and Special Servicer each hereby covenant and
agree to promptly seek and effect the reimbursement of such Advances from the
related Borrowers to the extent permitted by applicable law and the related
Mortgage Loan.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portions of the Trust Fund consisting of (i) the Default Interest allocable to
the Mortgage Loans, proceeds thereof held in the Collection Account pertaining
to the Default Interest allocable to the Mortgage Loans and the Default Interest
Distribution Account, (ii) the Excess Interest allocable to the Mortgage Loans,
proceeds thereof held in the Collection Account pertaining to the Excess
Interest allocable to the Mortgage Loans and the Excess Interest Distribution
Account, (iii) the Loan REMIC Residual Interest and proceeds thereof held in the
Collection Account and the Lower-Tier Distribution Account pertaining to the
Loan REMIC Residual Interests, and (iv) the Wilton Prepayment Premium Obligation
and proceeds thereof held in the Collection Account, Lower-Tier Distribution
Account or Upper-Tier Distribution Account pertaining thereto shall constitute,
and that the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Bond Administrator shall furnish or cause to
be furnished to Class Q-1 and Class Q-2 Certificateholders and to the Holders of
Certificates who receive the Prepayment Premium with respect to the Wilton
Prepayment Premium Obligation 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, (x) the amount of Default Interest allocable to the Mortgage Loans
received or accrued and the amount of any interest on unreimbursed Advances paid
to the Servicer, the Special Servicer and/or the Trustee, as applicable, from
Default Interest pursuant to Section 3.06(d)(iii) in the case of the Class Q-1
Certificates, (y) the amount of Excess Interest allocable to the Mortgage Loans
received or accrued in the case of the Class Q-2 Certificates, and (z) to the
Classes of Certificates receiving a Prepayment Premium with respect to the
Wilton Prepayment Premium Obligation, the amount thereof, at the time or times
and in the manner required by the Code; provided, that the Bond Administrator
shall report to the Class LR Certificateholders with respect to the Loan REMIC
Residual Interests in accordance with Section 4.02 and Section 4.04(b). The
Trustee shall sign all Tax Returns and other reports required by this Section
4.07 promptly after receipt thereof from the Bond Administrator.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. (a) The Certificates consist of
the Class A-1 Certificates, the Class A-2 Certificates, the Class X
Certificates, the Class B Certificates, the Class C Certificates, the Class D
Certificates, the Class E Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class J Certificates, the Class K
Certificates, the Class L Certificates, the Class M Certificates, the Class N
Certificates, the Class O Certificates, the Class Q-1 Certificates, the Class
Q-2 Certificates, the Class R Certificates and the Class LR Certificates.
The Class A-1, Class A-2, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class Q-1, Class Q-2, Class R and Class LR Certificates will be
substantially in the forms annexed hereto as Exhibits A-1 through A-20, as set
forth in the Table of Exhibits hereto. The Certificates of each Class will be
issuable in registered form only, in minimum denominations of authorized
Certificate Balance or Notional Balance, as applicable, as described in the
succeeding table, and multiples of $l in excess thereof (or such lesser amount
if the Certificate Balance or Notional Balance, as applicable, is not a multiple
of $1). With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (A) set forth on
the face thereof or (B) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the amount set forth on the books and records of the related
Depository Participant or Indirect Participant, as applicable, (ii) expressed in
terms of Certificate Balance or Notional Balance, as applicable, and (iii) be in
an authorized denomination, as set forth below.
MINIMUM AGGREGATE DENOMINATION OF
CLASS DENOMINATION ALL CERTIFICATES OF CLASS
----- ------------ -------------------------
A-1 $ 10,000.00 $ 148,498,000
A-2 $ 10,000.00 $ 542,915,000
X $ 1,000,000.00 $ 897,940,215
B $ 25,000.00 $ 38,162,000
C $ 25,000.00 $ 39,284,000
D $ 25,000.00 $ 13,469,000
E $ 25,000.00 $ 25,815,000
F $ 25,000.00 $ 11,224,000
G $ 25,000.00 $ 26,938,000
H $ 25,000.00 $ 6,734,000
J $ 25,000.00 $ 6,734,000
K $ 25,000.00 $ 10,101,000
L $ 25,000.00 $ 7,856,000
M $ 25,000.00 $ 6,734,000
N $ 25,000.00 $ 4,489,000
O $ 25,000.00 $ 8,987,215
Each Certificate will share ratably in all rights of the related
Class. The Class Q-1, Class Q-2, Class R and LR Certificates will each be
issuable in one or more registered, definitive physical certificates in minimum
denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
The Global Certificates shall be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Beneficial Owners shall hold interests in the Global Certificates through
the book-entry facilities of the Depository in the minimum Denominations and
aggregate Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the
same benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the
Trust Fund, the Paying Agent and the Trustee and Bond Administrator may for all
purposes (including the making of payments due on the Global Certificates and
the giving of notice to Holders thereof) deal with the Depository as the
authorized representative of the Beneficial Owners with respect to the Global
Certificates for the purposes of exercising the rights of Certificateholders
hereunder; provided, however, that, for purposes of providing information
pursuant to Section 3.22 or transmitting communications pursuant to Section
5.05(a), to the extent that the Depositor has provided the Bond Administrator
with the names of Beneficial Owners (even if such Certificateholders hold their
Certificates through the Depository) the Bond Administrator shall provide such
information to such Beneficial Owners directly. The rights of Beneficial Owners
with respect to Global Certificates shall be limited to those established by law
and agreements between such Certificateholders and the Depository and Depository
Participants. Except as set forth in Section 5.01(e) below, Beneficial Owners of
Global Certificates shall not be entitled to physical certificates for the
Global Certificates as to which they are the Beneficial Owners. Requests and
directions from, and votes of, the Depository as Holder of the Global
Certificates shall not be deemed inconsistent if they are made with respect to
different Beneficial Owners. Subject to the restrictions on transfer set forth
in this Section 5.02 and Applicable Procedures, the holder of a beneficial
interest in a Private Global Certificate may request that the Bond Administrator
cause the Depository (or any Agent Member) to notify the Certificate Registrar
and the Certificate Custodian in writing of a request for transfer or exchange
of such beneficial interest for an Individual Certificate or Certificates. Upon
receipt of such a request and payment by the related Beneficial Owner of any
attendant expenses, the Depositor shall cause the issuance and delivery of such
Individual Certificates. The Certificate Registrar may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Certificate Registrar, no Global Certificate
may be transferred by the Depository except to a successor Depository that
agrees to hold the Global Certificates for the account of the Beneficial Owners.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and in either case 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 Global Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If (i) the Depository advises the Bond Administrator in
writing that the Depository is no longer willing, qualified or able properly to
discharge its responsibilities as Depository, and the Depositor is unable to
locate a qualified successor, (ii) the Depositor, at its sole option, elects to
terminate the book-entry system through the Depository with respect to all or
any portion of any Class of Certificates or (iii) after the occurrence of an
Event of Default, Beneficial Owners owning not less than a majority in
Certificate Balance or Notional Balance, as applicable, of the Global
Certificate for any Class then outstanding advise the Bond Administrator and the
Depository through Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interest of
the Beneficial Owner or Owners of such Global Certificate, the Bond
Administrator shall notify the affected Beneficial Owner or Owners through the
Depository of the occurrence of such event and the availability of Individual
Certificates to such Beneficial Owners requesting them. Upon surrender to the
Bond Administrator of Global Certificates by the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Bond Administrator shall issue the Individual Certificates. Neither the Trustee,
the Bond Administrator, the Certificate Registrar, the Servicer, the Special
Servicer nor the Depositor shall be liable for any actions taken by the
Depository or its nominee, including, without limitation, any delay in delivery
of such instructions. Upon the issuance of Individual Certificates, the Trustee,
the Bond Administrator, the Certificate Registrar and the Servicer shall
recognize the Holders of Individual Certificates as Certificateholders
hereunder.
(f) If the Bond Administrator, its agents or the Servicer or
Special Servicer 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 Bond Administrator, the Servicer or the Special Servicer
has been advised by counsel that in connection with such proceeding it is
necessary or appropriate for the Bond Administrator, the Servicer or the Special
Servicer to obtain possession of the Certificates, the Bond Administrator, the
Servicer or the Special Servicer may in its sole discretion determine that the
Certificates represented by the Global Certificates shall no longer be
represented by such Global Certificates. In such event, the Bond Administrator
or the Authenticating Agent will execute and authenticate and the Certificate
Registrar will deliver, in exchange for such Global Certificates, Individual
Certificates (and if the Bond Administrator or the Certificate Custodian has in
its possession Individual Certificates previously executed, the Authenticating
Agent will authenticate and the Certificate Registrar will deliver such
Certificates) in a Denomination equal to the aggregate Denomination of such
Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d)
of the Exchange Act, the Bond Administrator shall make available to each Holder
of a Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class O, Class Q-1, Class Q-2, Class R or Class LR Certificate, upon
request of such a Holder, information, to the extent such information is in its
possession, substantially equivalent in scope to the information currently filed
by the Servicer 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, all of which information referred to in
this paragraph shall be provided on a timely basis to the Bond Administrator by
the Servicer.
For so long as the Class Q-1, Class Q-2 Class R or Class LR
Certificates remain outstanding, none of the Depositor, the Bond Administrator
or 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.
(h) Each Certificate may be printed or in typewritten or similar
form, and each Certificate shall, upon original issue, be executed and
authenticated by the Bond Administrator or the Authenticating Agent and
delivered to the Depositor. All Certificates shall be executed by manual or
facsimile signature on behalf of the Bond Administrator or Authenticating Agent
by an authorized officer or signatory. Certificates bearing the signature of an
individual who was at any time the proper officer or signatory of the Bond
Administrator or Authenticating Agent shall bind the Bond Administrator or
Authenticating Agent, notwithstanding that such individual has ceased to hold
such office or position prior to the delivery of such Certificates or did not
hold such office or position at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication in the form set forth in Exhibits A-1 through A-20 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.
Section 5.02 Registration, Transfer and Exchange of Certificates.
(a) The Bond Administrator shall keep or cause to be kept at its offices books
(the "Certificate Register") for the registration, transfer and exchange of
Certificates (the Bond Administrator, in such capacity, being the "Certificate
Registrar"). 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 the
individual Participants holding beneficial interests in the Trust Fund through
the Depository. 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 Depositor, Certificate Registrar, the Servicer, Special
Servicer, the Trustee, the Bond Administrator, any Paying Agent and any agent of
any of them shall not be affected by any notice or knowledge to the contrary. An
Individual Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its offices together with an
assignment and transfer (executed by the Holder or his duly authorized
attorney), subject to the requirements of Sections 5.01(h) and 5.02(c), (d),
(e), (f), (g), (h) and (i). Upon request of the Bond Administrator, the
Certificate Registrar shall provide the Bond Administrator with the names,
addresses and Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Bond Administrator shall execute and the Authenticating
Agent shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like aggregate
Denomination as the Individual Certificate being surrendered. Such Certificates
shall be delivered by the Certificate Registrar in accordance with Section
5.02(e). Each Certificate surrendered for registration of transfer shall be
canceled and subsequently destroyed by the Certificate Registrar. Each new
Certificate issued pursuant to this Section 5.02 shall be registered in the name
of any Person as the transferring Holder may request, subject to the provisions
of Sections 5.01(h) and 5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.01(h) and
5.02(d), (e), (f), (g), (h) and (i) and the rules of the Depository, the
exchange, transfer and registration of transfer of Individual Certificates or
beneficial interests in the Private Global Certificates shall be subject to the
following restrictions:
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an Individual
Certificate representing an interest in the Class Q-1, Class Q-2, Class
R or Class LR Certificates to a transferee that takes delivery in the
form of an Individual Certificate:
(A) The Certificate Registrar shall register the transfer
of an Individual Certificate if the requested transfer is being
made by a transferee who has provided the Certificate Registrar
with an Investment Representation Letter substantially in the
form of Exhibit D-1 hereto (an "Investment Representation
Letter"), to the effect that the transfer is being made to a
Qualified Institutional Buyer in accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer
of an Individual Certificate pursuant to Regulation S after the
expiration of the Restricted Period if (1) the transferor has
provided the Certificate Registrar with a Regulation S Transfer
Certificate substantially in the form of Exhibit K hereto (a
"Regulation S Transfer Certificate"), and (2) the transferee
furnishes to the Certificate Registrar an Investment
Representation Letter; or
(C) The Certificate Registrar shall register the transfer
of an Individual Certificate if prior to the transfer such
transferee furnishes to the Certificate Registrar (1) an
Investment Representation Letter to the effect that the transfer
is being made to an Institutional Accredited Investor or to an
Affiliated Person in accordance with an applicable exemption
under the Act, and (2) an opinion of counsel acceptable to the
Certificate Registrar that such transfer is in compliance with
the Act;
and, in each case, the Certificate Registrar shall register the transfer
of an Individual Certificate only if prior to the transfer the
transferee furnishes to the Certificate Registrar a written undertaking
by the transferor to reimburse the Trust Fund for any costs incurred by
it in connection with the proposed transfer. In addition, the
Certificate Registrar may, as a condition of the registration of any
such transfer, require the transferor to furnish such other
certificates, legal opinions or other information (at the transferor's
expense) as the Certificate Registrar 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
Act and other applicable laws.
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary herein, so long as a
Private Global Certificate remains outstanding and is held by or on
behalf of the Depository, transfers within the Private Global
Certificates shall only be made in accordance with this Section
5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the
Restricted Period, a Beneficial Owner of an interest in a Rule
144A Global Certificate wishes at any time to transfer its
beneficial interest in such Rule 144A Global Certificate to a
Person who wishes to take delivery thereof in the form of a
beneficial interest in the related Regulation S Global
Certificate, such Beneficial Owner may, in addition to complying
with all applicable rules and procedures of the Depository and
Clearstream or Euroclear applicable to transfers by their
respective participants (the "Applicable Procedures"), transfer
or cause the transfer of such beneficial interest for an
equivalent beneficial interest in such Regulation S Global
Certificate only upon compliance with the provisions of this
Section 5.02(c)(ii)(A). Upon receipt by the Certificate Registrar
at the Corporate Trust Office of (1) written instructions given
in accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an amount
equal to the Denomination of the beneficial interest in the Rule
144A Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member and the
Euroclear or Clearstream account, as the case may be, to be
credited with, and the account of the Agent Member to be debited
for, such beneficial interest, and (3) a certificate in the form
of Exhibit L hereto given by the Beneficial Owner of such
interest, the Certificate Registrar shall instruct the Depository
or the Certificate Custodian, as applicable, to reduce the
Denomination of the Rule 144A Global Certificate by the
Denomination of the beneficial interest in the Rule 144A Global
Certificate to be so transferred and, concurrently with such
reduction, to increase the Denomination of the Regulation S
Global Certificate by the Denomination of the beneficial interest
in the Rule 144A Global Certificate to be so transferred, and to
credit or cause to be credited to the account of the Person
specified in such instructions (who shall be an Agent Member
acting for or on behalf of Euroclear or Clearstream, or both, as
the ease may be) a beneficial interest in the Regulation S Global
Certificate having a Denomination equal to the amount by which
the Denomination of the Rule 144A Global Certificate was reduced
upon such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial
interest in such Rule 144A Global Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in the related Regulation S Global Certificate, such
holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial
interest for an equivalent beneficial interest in such Regulation
S Global Certificate only upon compliance with the provisions of
this Section 5.02(c)(ii)(B). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (1) written
instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to another specified Agent
Member's account a beneficial interest in the Regulation S Global
Certificate in an amount equal to the Denomination of the
beneficial interest in the Rule 144A Global Certificate to be
transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the
account of the Agent Member and, in the case of a transfer
pursuant to and in accordance with Regulation S, the Euroclear or
Clearstream account, as the case may be, to be credited with, and
the account of the Agent Member to be debited for, such
beneficial interest, and (3) a certificate in the form of Exhibit
M hereto given by the Beneficial Owner of such interest, the
Certificate Registrar shall instruct the Depository or the
Certificate Custodian, as applicable, to reduce the Denomination
of the Rule 144A Global Certificate by the aggregate Denomination
of the beneficial interest in the Rule 144A Global Certificate to
be so transferred and, concurrently with such reduction, to
increase the Denomination of the Regulation S Global Certificate
by the aggregate Denomination of the beneficial interest in the
Rule 144A Global Certificate to be so transferred, 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 having a Denomination equal to the amount by
which the Denomination of the Rule 144A Global Certificate was
reduced upon such transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a
Regulation S Global Certificate wishes at any time to transfer
its beneficial interest in such Regulation S Global Certificate
to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the related Rule 144A Global Certificate,
such Beneficial Owner may, in addition to complying with all
Applicable Procedures, transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in such
Rule 144A Global Certificate only upon compliance with the
provisions of this Section 5.02(c)(ii)(C). Upon receipt by the
Certificate Registrar at the Corporate Trust Office of (1)
written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate
Registrar to credit or cause to be credited to another specified
Agent Member's account a beneficial interest in the Rule 144A
Global Certificate in an amount equal to the Denomination of the
beneficial interest in the Regulation S Global Certificate to be
transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the
account of the Agent Member to be credited with, and the account
of the Agent Member or, if such account is held for Euroclear or
Clearstream, the Euroclear or Clearstream account, as the case
may be, to be debited for, such beneficial interest, and (3) with
respect to a transfer of a beneficial interest in a Regulation S
Global Certificate for a beneficial interest in the related Rule
144A Global Certificate (i) during the Restricted Period, a
certificate in the form of Exhibit N hereto given by the holder
of such beneficial interest or (ii) after the Restricted Period,
an Investment Representation Letter from the transferee to the
effect that such transferee is a Qualified Institutional Buyer,
the Certificate Registrar shall instruct the Depository or the
Certificate Custodian, as applicable, to reduce the Denomination
of the Regulation S Global Certificate by the aggregate
Denomination of the beneficial interest in the Regulation S
Global Certificate to be transferred, and, concurrently with such
reduction, to increase the Denomination of the Rule 144A Global
Certificate by the aggregate Denomination of the beneficial
interest in the Regulation S Global Certificate to be so
transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial
interest in such Rule 144A Global Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Global Certificate was reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to
Individual Certificates. Any and all transfers from a Private Global
Certificate to a transferee wishing to take delivery in the form of an
Individual Certificate will require the transferee to take delivery
subject to the restrictions on the transfer of such Individual
Certificate described in a legend set forth on the face of such
Certificate substantially in the form of Exhibit G as attached hereto
(the "Securities Legend"), and such transferee agrees that it will
transfer such Individual Certificate only as provided therein and
herein. No such transfer shall be made and the Certificate Registrar
shall not register any such transfer unless such transfer is made in
accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will require
delivery in the form of an Individual Certificate and the
Certificate Registrar shall register such transfer only upon
compliance with the provisions of Section 5.02(c)(i)(c).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate Registrar only
upon compliance with the provisions of Sections 5.02(c)(i)(A) and
(B), respectively.
(C) Notwithstanding the foregoing, no transfer of a
beneficial interest in a Regulation S Global Certificate to an
Individual Certificate pursuant to subparagraph (B) above shall
be made prior to the expiration of the Restricted Period.
Upon acceptance for exchange or transfer of a beneficial interest in a
Private Global Certificate for an Individual Certificate, as provided
herein, the Certificate Registrar shall endorse on the schedule affixed
to the related Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global 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 Private Global
Certificate equal to the Denomination of such Individual Certificate
issued in exchange therefor or upon transfer thereof. Unless determined
otherwise by the Certificate Registrar and the Depositor in accordance
with applicable law, an Individual Certificate issued upon transfer of
or exchange for a beneficial interest in the Private Global Certificate
shall bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual 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 related
Regulation S Global Certificate or the related Rule 144A Global
Certificate, such transfer may be effected only in accordance with the
Applicable Procedures and this Section 5.02(c)(iv). Upon receipt by the
Certificate Registrar at the Corporate Trust Office of (l) the
Individual Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(a), (2) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be credited
to a specified Agent Member's account a beneficial interest in such
Regulation S Global Certificate or such Rule 144A Global Certificate,
as the case may be, in an amount equal to the Denomination of the
Individual Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member and, in the case of any
transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be, to be credited with such beneficial
interest, and (4) (x) an Investment Representation Letter from the
transferee and, if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer if delivery is to be
taken in the form of a beneficial interest in the Rule 144A Global
Certificate, the Certificate Registrar shall cancel such Individual
Certificate, execute and deliver a new Individual Certificate for the
Denomination of the Individual 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 Certificate Custodian, as applicable, to increase
the Denomination of the Regulation S Global Certificate or the Rule
144A Global Certificate, as the case may be, by the Denomination of the
Individual Certificate to be so transferred, and to credit or cause to
be credited to the account of the Person specified in such instructions
who, in the case of any increase in the Regulation S Global Certificate
during the Restricted Period, shall be an Agent Member acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be, a
corresponding Denomination of the Rule 144A Global Certificate or the
Regulation S Global Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional
Buyer take delivery in the form of a beneficial interest in a Private
Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a
Private Global Certificate for an Individual Certificate or
Certificates, an exchange of an Individual Certificate or Certificates
for a beneficial interest in a Private Global Certificate and an
exchange of an Individual Certificate or Certificates for another
Individual Certificate or Certificates (in each case, whether or not
such exchange is made in anticipation of subsequent transfer, and, in
the case of the Private Global Certificates, so long as the Private
Global Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02
and in accordance with the rules of the Depository and Applicable
Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an opinion of counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set
forth in Section 5.01(i) and in this Section 5.02, the Holder of any Individual
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 office of the Bond Administrator or at the office of any
transfer agent appointed as provided under this Agreement, 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 office of the Bond Administrator or within ten Business
Days if made at the office of a transfer agent (other than the Certificate
Registrar), execute and deliver at the office of the Bond Administrator 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, an Individual Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the office of the Bond
Administrator or at the office of a transfer agent by the registered Holder in
person, or by a duly authorized attorney-in-fact. The Certificate Registrar may
decline to accept any request for an exchange or registration of transfer of any
Certificate during the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual
Certificate issued in exchange for a beneficial interest in a Global Certificate
pursuant to Section 5.01) or a beneficial interest in a Private Global
Certificate may only be transferred to Eligible Investors, as described herein.
In the event that a Responsible Officer of the Certificate Registrar becomes
aware that such an Individual Certificate or 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 such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Individual Certificate or beneficial interest in a Private Global
Certificate to an Eligible Investor within fourteen days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 other than for transfers to
Institutional Accredited Investors, as provided herein. In connection with any
transfer to an Institutional Accredited Investor, the transferor shall reimburse
the Trust Fund for any costs (including the cost of the Certificate Registrar's
counsel's review of the documents and any legal opinions, submitted by the
transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. 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.
(i) Subject to Section 5.02(e), transfers of the Class Q-1, Class
Q-2, Class R and Class LR Certificates may be made only in accordance with this
Section 5.02(i). The Certificate Registrar shall register the transfer of a
Class Q-1, Class Q-2, Class R or Class LR Certificate only if (x) the transferor
has advised the Certificate Registrar in writing that such Certificate is being
transferred to a Qualified Institutional Buyer, an Affiliated Person or an
Institutional Accredited Investor and (y) prior to such transfer the transferee
furnishes to the Certificate Registrar an Investment Representation Letter. 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 Act and other applicable laws.
(j) Neither the Depositor, the Servicer, the Trustee, the Bond
Administrator nor the Certificate Registrar is obligated to register or qualify
the Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O Class Q-1, Class Q-2, Class R or Class LR Certificates under
the Act or any other securities law or to take any action not otherwise required
under this Agreement to permit the transfer of such Certificates without
registration or qualification. Any Certificateholder desiring to effect such a
transfer shall, and does hereby agree to, indemnify the Depositor, the Servicer,
the Trustee, the Bond Administrator and the Certificate Registrar, against any
loss, liability or expense that may result if the transfer is not so exempt or
is not made in accordance with such federal and state laws.
(k) No transfer of any Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O,
Class Q-1, Class Q-2, Class R or Class LR Certificate (each, a "Restricted
Certificate") shall be made to (i) 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 (ii) a collective
investment fund in which a Plan is invested, an insurance company that is using
the assets of any insurance company separate account or general account in which
the assets of any such Plan are invested (or which are deemed pursuant to ERISA
or any Similar Law to include assets of Plans) to acquire any such Restricted
Certificate or any other Person acting on behalf of any Plan or using the assets
of any Plan to acquire any such Restricted Certificate, other than (with respect
to transfer of Restricted Certificates other than the Class Q-1, Class Q-2, and
the Residual Certificates) an insurance company using the assets of its general
account under circumstances whereby such transfer to such insurance company
would be exempt from the "prohibited transaction" provisions of Sections 406 and
407 of ERISA and Section 4975 of the Code under Sections I and III of PTCE
95-60, or a substantially similar exemption under Similar Law. Each prospective
transferee of a Restricted Certificate shall either (i) deliver to the
Depositor, the Certificate Registrar and the Bond Administrator, a transfer or
representation letter, substantially in the form of Exhibit D-2 hereto, stating
that the prospective transferee is not a Person referred to in (i) or (ii) above
or (ii) in the event the transferee is such an entity specified in (i) or (ii)
above (except in the case of a Residual Certificate or a Class Q-1 or Class Q-2
Certificate, which may not be transferred unless the transferee represents it is
not such an entity), such entity shall provide any opinions of counsel,
officers' certificates or agreements as may be required by, and in form and
substance satisfactory to, the Depositor, the Bond Administrator and the
Certificate Registrar, to the effect that the purchase and holding of the
Certificates by or on behalf of a Plan will not result in the assets of the
trust 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 Sections 406 and 407 of ERISA and Section 4975
of the Code, and will not subject the Servicer, the Special Servicer, the
Depositor, the Trustee, the Bond Administrator or the Certificate Registrar to
any obligation or liability. None of the Trustee, the Bond Administrator or the
Certificate Registrar shall register a Class R or Class LR Certificate or a
Class Q-1 or Class Q-2 Certificate in any Person's name unless such Person has
provided the letter referred to in clause (i) of the preceding sentence. The
transferee of a beneficial interest in a Global Certificate that is a Restricted
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 (with respect to transfers of beneficial interests in Global
Certificates which are Restricted Certificates other than the Class Q-1, Class
Q-2 and the Residual Certificates) an insurance company using the assets of its
general account under circumstances whereby such transfer to such insurance
company would be exempt from the "prohibited transaction" provisions of Sections
406 and 407 of ERISA and Section 4975 of the Code under Sections I and III of
PTCE 95-60, or a substantially similar exemption under Similar Law. Any transfer
of a Restricted Certificate that would violate or result in a prohibited
transaction under ERISA or Section 4975 of the Code shall be deemed absolutely
null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall
be deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and the rights of each Person
acquiring any Ownership Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Ownership Interest shall
be a Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman) on
behalf of any Person that is not a Permitted Transferee. Any such
Person shall promptly notify the Certificate Registrar of any change or
impending change in its status (or the status of the beneficial owner
of such Ownership Interest) as a Permitted Transferee. Any acquisition
described in the first sentence of this Section 5.02(l) by a Person who
is not a Permitted Transferee or by a Person who is acting as an agent
of a Person who is not a Permitted Transferee shall be void and of no
effect, and the immediately preceding owner who was a Permitted
Transferee shall be restored to registered and beneficial ownership of
the Ownership Interest as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such
Transfer shall be registered in the Certificate Register, without the
express written consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the Transfer, and such
proposed Transfer shall not be effective, without such consent with
respect thereto. In connection with any proposed Transfer of any
Ownership Interest, the Certificate Registrar shall, as a condition to
such consent, (x) require delivery to it in form and substance
satisfactory to it, and the proposed transferee shall deliver to the
Certificate Registrar and to the proposed transferor an affidavit in
substantially the form attached as Exhibit C-1 (a "Transferee
Affidavit") of the proposed transferee (A) that such proposed
transferee is a Permitted Transferee and (B) stating that (i) the
proposed transferee historically has paid its debts as they have come
due and intends to do so in the future, (ii) the proposed transferee
understands that, as the holder of an Ownership Interest, it may incur
liabilities in excess of cash flows generated by the residual interest,
(iii) the proposed transferee intends to pay taxes associated with
holding the Ownership Interest as they become due, (iv) the proposed
transferee will not transfer the Ownership Interest to any Person that
does not provide a Transferee Affidavit or as to which the proposed
transferee has actual knowledge that such Person is not a Permitted
Transferee or is acting as an agent (including a broker, nominee or
other middleman) for a Person that is not a Permitted Transferee, and
(v) the proposed transferee expressly agrees to be bound by and to
abide by the provisions of this Section 5.02(l) and (y) other than in
connection with the initial issuance of the Class R and Class LR
Certificates, require a statement from the proposed transferor
substantially in the form attached as Exhibit C-2 (the "Transferor
Letter"), that the proposed transferor has no actual knowledge that the
proposed transferee is not a Permitted Transferee and has no actual
knowledge or reason to know that the proposed transferee's statements
in the preceding clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible Officer
of the Certificate Registrar has actual knowledge that the proposed
transferee is not a Permitted Transferee, no Transfer to such proposed
transferee shall be effected and such proposed Transfer shall not be
registered on the Certificate Register; provided, however, that the
Certificate Registrar shall not be required to conduct any independent
investigation to determine whether a proposed transferee is a Permitted
Transferee.
Neither the Bond Administrator nor the Certificate Registrar
shall have any obligation or duty to monitor, determine or inquire as to
compliance with any restriction or transfer imposed under Article V of this
Agreement or under applicable law with respect to any transfer of any
Certificate, or any interest therein, other than to require delivery of the
certification(s) and/or opinions of counsel described in Article V applicable
with respect to changes in registration of record ownership of Certificates in
the Certificate Register. The Bond Administrator and the Certificate Registrar
shall have no liability for transfers, including transfers made through the
book-entry facilities of the Depository or between or among Depository
Participants or Beneficial Owners made in violation of applicable restrictions.
Upon notice to the Certificate Registrar that there has occurred
a Transfer to any Person that is a Disqualified Organization or an agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, and in any event not later than 60 days after a request for
information from the transferor of such Ownership Interest, or such agent, the
Certificate Registrar and the Bond Administrator agree to furnish to the IRS and
the transferor of such Ownership Interest or such agent such information
necessary to the application of Section 860E(e) of the Code as may be required
by the Code, including, but not limited to, the present value of the total
anticipated excess inclusions with respect to such Class R or Class LR
Certificate (or portion thereof) for periods after such Transfer. At the
election of the Certificate Registrar and the Bond Administrator, the
Certificate Registrar and the Bond Administrator may charge a reasonable fee for
computing and furnishing such information to the transferor or to such agent
referred to above; provided, however, that such Persons shall in no event be
excused from furnishing such information.
Section 5.03 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 Certificate Registrar such security or indemnity as may be required by it to
save it, the Bond Administrator and the Servicer harmless, then, in the absence
of actual knowledge by a Responsible Officer of the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Bond
Administrator or the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall 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 tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.03, 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 Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Appointment of Paying Agent. The Bond Administrator
may appoint a paying agent for the purpose of making distributions to
Certificateholders pursuant to Section 4.01 and to Companion Holders pursuant to
Section 3.05 (such paying agent is the Companion Paying Agent appointed pursuant
to Section 8.11). The Bond Administrator shall cause such Paying Agent, if other
than the Bond Administrator or the Servicer, to execute and deliver to the
Servicer and the Bond Administrator an instrument in which such Paying Agent
shall agree with the Servicer and the Bond Administrator that such Paying Agent
will hold all sums held by it for the payment to Certificateholders or Companion
Holders in trust for the benefit of the Certificateholders and any Companion
Holders entitled thereto until such sums have been paid to the
Certificateholders or disposed of as otherwise provided herein. The initial
Paying Agent shall be the Bond Administrator. Except for the Bond Administrator,
as the initial Paying Agent, the Paying Agent shall at all times be an entity
having a long-term unsecured debt rating of at least "AA" by Fitch and by S&P,
or shall be otherwise acceptable to each Rating Agency.
Section 5.05 Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (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.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Bond Administrator that the Bond Administrator 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.
Section 5.06 Actions of Certificateholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by agent duly appointed in
writing; and except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Bond
Administrator and, when required, to the Servicer. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Bond
Administrator and the Servicer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder
of any such instrument or writing may be proved in any reasonable manner which
the Bond Administrator deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every Holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done, by the Bond Administrator or the Servicer in reliance thereon, whether
or not notation of such action is made upon such Certificate.
(d) The Bond Administrator or Certificate Registrar may require
such additional proof of any matter referred to in this Section 5.06 as it shall
deem necessary.
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 each
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed by this Agreement.
Section 6.02 Merger or Consolidation of the Servicer. Subject to
the following paragraph, the Servicer will keep in full effect its existence,
rights and good standing as a limited liability company under the laws of the
State of Delaware and will not jeopardize its ability to do business in each
jurisdiction in which the Mortgaged Properties are located or to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Servicer may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which it
shall be a party, or any Person succeeding to its business, shall be the
successor of the Servicer hereunder, and shall be deemed to have assumed all of
the liabilities of the Servicer hereunder, if each of the Rating Agencies has
confirmed in writing that such merger or consolidation or transfer of assets and
succession, in and of itself, will not cause a downgrade, qualification or
withdrawal of the then-current ratings assigned by such Rating Agency to any
Class of Certificates.
Section 6.03 Limitation on Liability of the Depositor, the
Servicer and Others. None of the Depositor, the Servicer or the Special Servicer
or any of the directors, officers, employees, members, managers or agents
(including subservicers) of the Depositor, the Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Certificateholders or the
Companion Holders 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, Servicer
or the Special Servicer or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of willful misconduct, bad faith, fraud or negligence in the
performance of duties or by reason of reckless disregard of obligations or
duties hereunder. The Depositor, the Servicer, the Special Servicer, and any
member, manager, director, officer, employee or agent (including subservicers)
of the Depositor, the Servicer or the Special Servicer may rely in good faith on
any document of any kind which, prima facie, is properly executed and submitted
by any appropriate Person respecting any matters arising hereunder. The
Depositor, the Servicer, the Special Servicer and any member, manager, director,
officer, employee or agent (including subservicers) of the Depositor, the
Servicer or the Special Servicer shall be indemnified and held harmless by the
Trust Fund and the Companion Holders (but subject to Section 1.04) against any
loss, liability or expense (including legal fees and expenses) (i) incurred in
connection with any claim or legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason of
willful misconduct, bad faith, fraud or negligence (or in the case of the
Servicer, by reason of any specific liability proposed for a breach of the
Servicing Standard) in the performance of duties hereunder or by reason of
reckless disregard of obligations or duties hereunder, in each case by the
Person being indemnified or (ii) imposed by any taxing authority if such loss,
liability or expense is not specifically reimbursable pursuant to the terms of
this Agreement. Notwithstanding the foregoing, in the event of any loss,
liability or expense described in the preceding sentence relates to a Loan Pair
or related Mortgaged Property, (A) only the Trust Fund and the related Companion
Holder (and not any unrelated Companion Holder) shall be required to indemnify
such Persons specified in such sentence, and such indemnification shall be made
only from amounts otherwise distributable to such Companion Holder and to the
Trust Fund and (B) no Companion Holder shall have any liability hereunder with
respect to any loss, liability or expense (i) relating solely to any other Loan
Pair or (ii) relating solely to the issuance, sale, transfer or administration
of or distributions with respect to the Certificates or otherwise solely to the
Trust Fund. None of the Depositor, the Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action unless
such action is related to its respective duties under this Agreement and in its
opinion does not expose it to any expense or liability; provided, however, that
the Depositor, the Servicer or the Special Servicer may in its discretion
undertake any action related to its obligations hereunder which it may deem
necessary or desirable with 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 and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund
and the Companion Holders (but subject to Section 1.04 and the other limitations
specified herein), and the Depositor, the Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Collection Account as
provided in Section 3.06 of this Agreement. The terms of this Section 6.03 shall
survive the termination of any party hereto or of this Agreement.
Section 6.04 Limitation on Resignation of the Servicer and the
Special Servicer; Termination of the Servicer and the Special Servicer. (a) The
Servicer and the Special Servicer may assign their respective rights and
delegate their respective duties and obligations under this Agreement in
connection with the sale or transfer of a substantial portion of their mortgage
servicing or asset management portfolio, provided that: (i) the purchaser or
transferee accepting such assignment and delegation (A) shall be an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia, authorized under such laws to perform the duties of a
servicer of mortgage loans or a Person resulting from a merger, consolidation or
succession that is permitted under Section 6.02, (B) shall be acceptable to each
Rating Agency as confirmed by a letter from each Rating Agency delivered to the
Trustee and the Bond Administrator that such assignment or delegation will not
cause a downgrade, withdrawal or qualification of the then-current ratings of
the Certificates, and (C) shall execute and deliver to the Trustee, the Bond
Administrator and each Companion Holder an agreement, in form and substance
reasonably satisfactory to the Trustee and the Bond Administrator, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Servicer or Special Servicer, as applicable under this Agreement from and after
the date of such agreement; (ii) as confirmed by a letter from each Rating
Agency delivered to the Trustee and the Bond Administrator, each Rating Agency's
rating or ratings of the Regular Certificates in effect immediately prior to
such assignment, sale or transfer will not be qualified, downgraded or withdrawn
as a result of such assignment, sale or transfer; (iii) the Servicer or the
Special Servicer shall not be released from its obligations under this Agreement
that arose prior to the effective date of such assignment and delegation under
this Section 6.04; (iv) the Trustee and the Bond Administrator shall have given
their written consent thereto; and (v) the rate at which the Servicer
Compensation or Special Servicer Compensation, as applicable (or any component
thereof) is calculated shall not exceed the rate then in effect. Upon acceptance
of such assignment and delegation, the purchaser or transferee shall be the
successor Servicer or Special Servicer, as applicable, hereunder.
(b) Except as provided in Section 6.02 and this Section 6.04,
the Servicer and the Special Servicer shall not resign from their respective
obligations and duties hereby imposed on them except upon determination that
such duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel (obtained
at the resigning Servicer's or Special Servicer's expense) to such effect
delivered to the Trustee, the Bond Administrator and the Companion Holders.
(c) The Trustee shall be permitted to remove the Servicer or
Special Servicer provided that it has received notice from Fitch that if such
Servicer or Special Servicer is not removed there is the risk of a downgrade,
qualification or withdrawal of the then-current ratings by Fitch to any Class of
Certificates because of the Servicer or Special Servicer acting as Servicer or
Special Servicer. Without limiting the generality of the succeeding paragraph,
no such removal shall be effective unless and until (i) the Servicer or the
Special Servicer has been paid any unpaid Servicer Compensation or Special
Servicer Compensation, as applicable, unreimbursed Advances (including Advance
Interest Amounts thereon to which it is entitled) and all other amounts to which
the Servicer or the Special Servicer is entitled hereunder to the extent such
amounts accrue prior to such effective date and (ii) with respect to a
resignation by the Servicer, the successor Servicer has deposited into the
Investment Accounts from which amounts were withdrawn to reimburse the
terminated Servicer, an amount equal to the amounts so withdrawn, to the extent
such amounts would not have been permitted to be withdrawn except pursuant to
this paragraph, in which case the successor Servicer shall, immediately upon
deposit, have the same right of reimbursement or payment as the terminated
Servicer had immediately prior to its termination without regard to the
operation of this paragraph.
No resignation or removal of the Servicer or the Special Servicer
as contemplated by the preceding paragraphs shall become effective until the
Trustee or a successor Servicer or Special Servicer shall have assumed the
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
Section 6.05 Rights of the Depositor and the Trustee in Respect
of the Servicer and the Special Servicer. The Servicer and the Special Servicer
shall afford the Depositor, the Underwriters, the Trustee, the Bond
Administrator, the Companion Holders and the Rating Agencies, upon reasonable
notice, during normal business hours access to all records maintained by it in
respect of its rights and obligations hereunder and access to its officers
responsible for such obligations. Upon request, the Servicer and the Special
Servicer shall furnish to the Depositor, Servicer, Special Servicer, the
Trustee, the Bond Administrator and the Companion Holders its most recent
financial statements and such other information in its possession regarding its
business, affairs, property and condition, financial or otherwise as the party
requesting such information, in its reasonable judgment, determines to be
relevant to the performance of the obligations hereunder of the Servicer and the
Special Servicer. The Depositor may, but is not obligated to, enforce the
obligations of the Servicer or the Special Servicer hereunder which are in
default and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of such Person hereunder or exercise its
rights hereunder, provided that the Servicer and the Special Servicer shall not
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. In the event the Depositor or its designee
undertakes any such action it will be reimbursed by the Trust Fund from the
Collection Account as provided in Section 3.06 and Section 6.03(a) hereof to the
extent not recoverable from the Servicer or Special Servicer, as applicable.
None of the Depositor, the Trustee nor the Bond Administrator and neither the
Servicer, with respect to the Special Servicer, or the Special Servicer, with
respect to the Servicer, shall have any responsibility or liability for any
action or failure to act by the Servicer or the Special Servicer and neither
such Person is obligated to monitor or supervise the performance of the Servicer
or the Special Servicer under this Agreement or otherwise. Neither the Servicer
nor the Special Servicer shall be under any obligation to disclose confidential
or proprietary information pursuant to this Section.
Section 6.06 Servicer or Special Servicer as Owner of a
Certificate. The Servicer or an Affiliate of the Servicer, or the Special
Servicer or an Affiliate of the Special Servicer, may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Servicer or the Special Servicer or
an Affiliate thereof. If, at any time during which the Servicer or the Special
Servicer or an Affiliate of the Servicer or the Special Servicer is the Holder
or Beneficial Owner of any Certificate, the Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Servicer's or the Special Servicer's good faith judgment, violate the Servicing
Standard, and (ii) if taken, might nonetheless, in the Servicer's or the Special
Servicer's good faith judgment, be considered by other Persons to violate the
Servicing Standard, the Servicer or the Special Servicer may but need not seek
the approval of the Certificateholders or the Companion Holders to such action
by delivering to the Bond Administrator a written notice that (i) states that it
is delivered pursuant to this Section 6.06, (ii) identifies the Percentage
Interest in each Class of Certificates beneficially owned by the Servicer or the
Special Servicer or an Affiliate of the Servicer or the Special Servicer, and
(iii) describes in reasonable detail the action that the Servicer or the Special
Servicer proposes to take. The Bond Administrator, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Servicer and its
Affiliates or the Special Servicer and its Affiliates, as appropriate) and the
Companion Holders together with such instructions for response as the Bond
Administrator shall reasonably determine. If at any time Certificateholders
holding greater than 50% of the Voting Rights of all Certificateholders and the
Directing Certificateholder (calculated without regard to the Certificates
beneficially owned by the Servicer or its Affiliates or the Special Servicer or
its Affiliates, as applicable) and each affected Companion Holder (so long as no
Control Appraisal Event exists and is continuing with respect to that Companion
Loan) shall have consented in writing to the proposal described in the written
notice, and if the Servicer or the Special Servicer shall act as proposed in the
written notice, such action shall be deemed to comply with the Servicing
Standard. The Bond Administrator shall be entitled to reimbursement from the
Servicer or the Special Servicer, as applicable, of the reasonable expenses of
the Bond Administrator incurred pursuant to this paragraph. It is not the intent
of the foregoing provision that the Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, except in the case of unusual
circumstances.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. (a) "Servicer Event of Default",
wherever used herein, means any one of the following events:
(i) any failure by the Servicer to deposit into the Collection
Account or any failure by the Servicer to remit to the Lower-Tier
Distribution Account or any Companion Distribution Account any amount
required to be so deposited or remitted by the Servicer (including a
P&I Advance) pursuant to, and at the time specified by the terms of
this Agreement; or
(ii) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements or the breach of any representations or warranties on the
part of the Servicer contained in this Agreement which continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor, the Trustee or the Bond
Administrator or any Companion Holder affected thereby, or to the
Servicer, the Depositor, the Trustee and the Bond Administrator by the
Holders of Certificates evidencing Percentage Interests of at least 25%
of any Class affected thereby; or
(iii) confirmation in writing by Fitch that failure to remove the
Servicer will, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to any Class of
Certificates; 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 for 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, shall have been entered against the
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings of
or relating to the Servicer, or of or relating to all or substantially
all of its property; or
(vi) the 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 insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Servicer shall fail to make any Property Advance
required to be made by the Servicer hereunder (whether or not the
Trustee makes such Advance), which failure continues unremedied for a
period of fifteen (15) days after the date on which such Property
Advance was first due (or for any shorter period as may be required, if
applicable, to avoid any lapse in insurance coverage required under any
Mortgage or this Agreement with respect to any Mortgaged Property or to
avoid any foreclosure or similar action with respect to any Mortgaged
Property by reason of a failure to pay real estate taxes and
assessments, and if the Trustee makes a required Property Advance
pursuant to Section 3.24 due to the Servicer's failure to make a
required Advance, such Event of Default shall occur immediately upon
such Advance); or
(viii) the Servicer shall no longer be an "approved" or
"acceptable" (or equivalent designation) servicer by each of the Rating
Agencies for mortgage pools similar to the Trust Fund;
then, and in each and every such case, so long as a Servicer Event of Default
shall not have been remedied, the Trustee may, and at the written direction of
the Holders of at least 25% of the aggregate Voting Rights of all Certificates
shall, terminate the Servicer. In the case of clauses (iii) and (vii) above, the
Bond Administrator, on behalf of the Trustee, shall be required to notify
Certificateholders of such Servicer Event of Default and request whether such
Certificateholders favor such termination. In addition, the Bond Administrator
shall provide notice of such event to the Companion Holders.
In the event that the Servicer is also the Special Servicer and
the Servicer is terminated as provided in this Section 7.01, the Servicer shall
also be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Special Servicer to remit to the
Collection Account any amount required to be so deposited by the
Special Servicer pursuant to and in accordance with the terms of this
Agreement; or
(ii) any failure on the part of the Special Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements or the breach of any representations or warranties on the
part of the Special Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Special Servicer by the Servicer, the
Depositor, the Trustee, the Bond Administrator or any Companion Holder
affected thereby, or to the Special Servicer, the Servicer, the
Depositor, the Trustee and the Bond Administrator by the Holders of
Certificates evidencing Percentage Interests of at least 25% of any
Class affected thereby; or
(iii) confirmation in writing by Fitch that failure to remove the
Special Servicer would, in and of itself, cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to any
Class of Certificates; 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 for 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, shall have been entered against the Special
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings of
or relating to the Special Servicer, or of or relating to all or
substantially all of its property; or
(vi) 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 insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Special Servicer shall fail to make any Property
Advance required to be made by the Special Servicer hereunder (whether
or not the Servicer or the Trustee makes such Advance), which failure
continues unremedied for a period of fifteen (15) days after the date
on which such Property Advance was first due (or for any shorter period
as may be required, if applicable, to avoid any lapse in insurance
coverage required under any Mortgage or this Agreement with respect to
any Mortgaged Property or to avoid any foreclosure or similar action
with respect to any Mortgaged Property by reason of a failure to pay
real estate taxes and assessments, and if the Trustee makes a required
Property Advance pursuant to Section 3.24 due to the Special Servicer's
failure to make a required Advance, such Event of Default shall occur
immediately upon such Advance); or
(viii) the Special Servicer shall no longer be an "approved" or
"acceptable" (or equivalent designation) special servicer by each of
the Rating Agencies for mortgage pools similar to the Trust Fund;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer. In the case of clauses (iii)
and (vii) above, the Bond Administrator, on behalf of the Trustee, shall be
required to notify Certificateholders of such Special Servicer Event of Default
and request whether such Certificateholders favor such termination. In addition,
the Bond Administrator shall provide notice of such event to the Companion
Holders.
(c) In the event that the Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee (the "Terminating Party")
shall, by notice in writing to the Servicer or the Special Servicer, as the case
may be (the "Terminated Party"), terminate all of its rights and obligations
under this Agreement and in and to the Mortgage Loans or Loan Pairs and the
proceeds thereof, other than any rights the Terminated Party may have hereunder
as a Certificateholder and any rights or obligations that accrued prior to the
date of such termination (including the right to receive all amounts accrued or
owing to it under this Agreement, plus interest at the Advance Rate on such
amounts until received to the extent such amounts bear interest as provided in
this Agreement, with respect to periods prior to the date of such termination
and the right to the benefits of Section 6.03 notwithstanding any such
termination, and with respect to the Special Servicer, its right to receive any
Workout Fee subsequent to its termination as Special Servicer, pursuant to
Section 3.12(c)). On or after the receipt by the Terminated Party of such
written notice, all of its authority and power under this Agreement, whether
with respect to the Certificates (except that the Terminated Party shall retain
its rights as a Certificateholder in the event and to the extent that it is a
Certificateholder) or the Mortgage Loans or Loan Pairs or otherwise, shall pass
to and be vested in the Terminating Party pursuant to and under this Section
and, without limitation, the Terminating Party is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Terminated Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise; provided that in the event the Special Servicer
is terminated pursuant to Section 7.01(b), unless the Servicer is also the
Special Servicer, the provisions of this Agreement relating to a Terminating
Party shall also apply to and include the Servicer mutatis mutandis, and the
Servicer shall assume all of the Special Servicer's responsibilities, duties and
liabilities hereunder subject to (i) its consent to the foregoing and (ii)
receipt by the Trustee of written confirmation from each Rating Agency, that
such assumption would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates. The
Servicer and the Special Servicer each agree in the event it is terminated
pursuant to this Section 7.01 to promptly (and in any event no later than ten
Business Days subsequent to such notice) provide, at its own expense, the
Terminating Party with all documents and records requested by the Terminating
Party to enable the Terminating Party to assume its functions hereunder, and to
cooperate with the Terminating Party and the successor to its responsibilities
hereunder in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer to the successor Servicer
or Special Servicer or the Terminating Party, as applicable, for administration
by it of all cash amounts which shall at the time be or should have been
credited by the Servicer or the Special Servicer to the Collection Account, any
REO Account, any Excess Liquidation Proceeds Account, Lock-Box Account or Cash
Collateral Account or which shall thereafter be received with respect to the
Mortgage Loans or Loan Pairs, and shall promptly provide the Terminating Party
or such successor Servicer or successor Special Servicer (which may include the
Trustee or Bond Administrator), as applicable, all documents and records
reasonably requested by it, such documents and records to be provided in such
form as the Terminating Party or such successor Servicer or Special Servicer
shall reasonably request (including electromagnetic form), to enable it to
assume the Servicer's or Special Servicer's function hereunder. All reasonable
costs and expenses of the Terminating Party or the successor Servicer or
successor Special Servicer incurred in connection with transferring the Mortgage
Files to the successor Servicer or Special Servicer and amending this Agreement
to reflect such succession as successor Servicer or successor Special Servicer
pursuant to this Section 7.01 shall be paid by the predecessor Servicer or the
Special Servicer, as applicable, upon presentation of reasonable documentation
of such costs and expenses. If the predecessor Servicer or Special Servicer (as
the case may be) has not reimbursed the Terminating Party or the successor
Servicer or Special Servicer for such expenses within 90 days after the
presentation of reasonable documentation, such expense shall be reimbursed by
the Trust Fund and the Companion Holders; provided that the Terminated Party
shall not thereby be relieved of its liability for such expenses. If and to the
extent that the Terminated Party has not reimbursed such costs and expenses, the
Terminating Party shall have an affirmative obligation to take all reasonable
actions to collect such expenses on behalf of the Trust Fund and the Companion
Holders. Each Companion Holder (or an Operating Advisor acting on its behalf)
shall be entitled to provide notice to the Trustee of any Default or Event of
Default hereunder of which it has knowledge.
Section 7.02 Trustee to Act; Appointment of Successor. On and
after the time the Servicer or the Special Servicer receives a notice of
termination pursuant to Section 7.01, the Terminating Party (subject to Section
7.01(c)) shall be its successor in all respects in its capacity as Servicer or
Special Servicer under this Agreement and the transactions set forth or provided
for herein and, except as provided herein, shall be subject to all the
responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Servicer or Special Servicer by the
terms and provisions hereof, provided, however, that (i) the Terminating Party
shall have no responsibilities, duties, liabilities or obligations with respect
to any act or omission of the Servicer or Special Servicer and (ii) any failure
to perform, or delay in performing, such duties or responsibilities caused by
the Terminated Party's failure to provide, or delay in providing, records,
tapes, disks, information or monies shall not be considered a default by such
successor hereunder. The Trustee, as successor Servicer or successor Special
Servicer, shall be indemnified to the full extent provided the Servicer or
Special Servicer, as applicable, under this Agreement prior to the Servicer's or
the Special Servicer's termination. The appointment of a successor Servicer or
successor Special Servicer shall not affect any liability of the predecessor
Servicer or Special Servicer which may have arisen prior to its termination as
Servicer or Special Servicer. The Terminating Party shall not be liable for any
of the representations and warranties of the Servicer or Special Servicer herein
or in any related document or agreement, for any acts or omissions of the
predecessor Servicer or predecessor Special Servicer or for any losses incurred
in respect of any Permitted Investment by the Servicer pursuant to Section 3.07
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Terminating Party as successor Servicer
or successor Special Servicer shall be entitled to the Servicing Compensation or
Special Servicing Compensation, as applicable, and all funds relating to the
Mortgage Loans or Loan Pairs that accrue after the date of the Terminating
Party's succession to which the Servicer or Special Servicer would have been
entitled if the Servicer or Special Servicer, as applicable, had continued to
act hereunder. In the event any Advances made by the Servicer or the Trustee
shall at any time be outstanding, or any amounts of interest thereon shall be
accrued and unpaid, all amounts available to repay Advances and interest
hereunder shall be applied entirely to the Advances made by the Trustee (and the
accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall (i) if it is unable to so act, (ii) if
the Holders of Certificates entitled to at least 25% of the aggregate Voting
Rights so request in writing to the Trustee or if the Trustee is not an
"approved" servicer by any of the Rating Agencies for mortgage pools similar to
the Trust Fund, promptly appoint, or petition a court of competent jurisdiction
to appoint, any established mortgage loan servicing institution the appointment
of which will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings assigned to any Class of Certificates as
evidenced in writing by each Rating Agency, as the successor to the Servicer or
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 Special
Servicer hereunder shall be effective until the assumption by such successor of
all the Servicer's or Special Servicer's responsibilities, duties and
liabilities hereunder. Pending appointment of a successor to the Servicer (or
the Special Servicer if the Special Servicer is also the Servicer) hereunder,
unless the Trustee shall be prohibited by law from so acting, the Trustee shall
act in such capacity as hereinabove provided. Pending the appointment of a
successor to the Special Servicer , unless the Servicer is also the Special
Servicer, the Servicer shall act in such capacity. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Terminated Party
hereunder, provided, further, that if no successor to the Terminated Party can
be obtained to perform the obligations of such Terminated Party hereunder, after
consultation with the Directing Certificateholder and if a Loan Pair is
involved, the related Companion Holder (or Operating Advisor acting on its
behalf), additional amounts shall be paid to such successor and such amounts in
excess of that permitted the Terminated Party shall be treated as Realized
Losses. The Depositor, the Trustee, the Servicer or Special Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders and Other
Persons. (a) Upon any termination pursuant to Section 7.01 above or appointment
of a successor to the Servicer or the Special Servicer, the Bond Administrator
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register, to each Rating
Agency and to each Companion Holder.
(b) Within 30 days after the occurrence of any Event of Default
of which a Responsible Officer of the Trustee has actual knowledge, the Trustee
shall transmit by mail to the Bond Administrator who will forward to all Holders
of Certificates, all Companion Holders, each Operating Adviser and each Rating
Agency notice of such Event of Default, unless such Event of Default shall have
been cured or waived.
Section 7.04 Other Remedies of Trustee. During the continuance of
any Servicer Event of Default or a Special Servicer Event of Default, so long as
such Servicer Event of Default or Special Servicer Event of Default, if
applicable, shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name as Trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). In such event, the legal fees, expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund and any benefitted Companion Holder, and the Trustee shall be
entitled to be reimbursed therefor from the Collection Account as provided in
Section 3.06. Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Servicer Event
of Default or Special Servicer Event of Default, if applicable.
Section 7.05 Waiver of Past Events of Default; Termination. The
Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting
Rights of the Certificates may, on behalf of all Holders of Certificates and in
the case of a default affecting a Loan Pair, the related Companion Holder
(excluding any Companion Holder affiliated with the Servicer or Special Servicer
as to which such proposed waiver relates) may waive any default by the Servicer
or Special Servicer in the performance of its obligations hereunder and its
consequences, except a default in making any required deposits (including, with
respect to the Servicer, P&I Advances) to or payments from the Collection
Account or the Lower-Tier Distribution Account or in remitting payments as
received, in each case in accordance with this Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee and the Bond Administrator. (a)
Each of the Trustee and the Bond Administrator, prior to the occurrence of an
Event of Default of which a Responsible Officer of the Trustee or the Bond
Administrator, as applicable, has actual knowledge and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
and no permissive right of the Trustee or the Bond Administrator shall be
construed as a duty. During the continuance of an Event of Default of which a
Responsible Officer of the Trustee or the Bond Administrator has actual
knowledge, the Trustee or the Bond Administrator, as applicable, subject to the
provisions of Sections 7.02 and 7.05 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 person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) The Trustee and the Bond Administrator, upon receipt of any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Bond Administrator which are specifically
required to be furnished pursuant to any provision of this Agreement, shall
examine them to determine whether they conform on their face to the requirements
of this Agreement; provided, however, that, the Trustee and the Bond
Administrator shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument provided to it hereunder. If any such instrument is found not to
conform on its face to the requirements of this Agreement in a material manner,
the Trustee or the Bond Administrator, as applicable, shall request the provider
of such instrument to have the instrument corrected, and if the instrument is
not corrected to the Trustee or the Bond Administrator's reasonable
satisfaction, the Bond Administrator will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor the Bond Administrator nor any of
their officers, directors, employees, agents or "control" persons within the
meaning of the Act shall have any liability arising out of or in connection with
this Agreement, provided, that, subject to Section 8.02, no provision of this
Agreement shall be construed to relieve the Trustee or the Bond Administrator,
or any such person, from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or its own bad faith; and
provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee or the Bond Administrator has actual
knowledge, and after the curing or waiver of all such Events of Default
which may have occurred, the duties and obligations of the Trustee and
the Bond Administrator shall be determined solely by the express
provisions of this Agreement, the Trustee and the Bond Administrator
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 or the Bond Administrator and, in the absence of bad faith on
the part of the Trustee or the Bond Administrator, the Trustee and the
Bond Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any resolutions, certificates, statements, reports, opinions,
documents, orders or other instruments furnished to the Trustee that
conform on their face to the requirements of this Agreement to the
extent set forth herein without responsibility for investigating the
contents thereof;
(ii) Neither the Trustee nor the Bond Administrator shall be
personally liable for an error of judgment made in good faith by a
Responsible Officer of the Trustee or Bond Administrator, as
applicable, unless it shall be proved that the Trustee or the Bond
Administrator was negligent in ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Bond Administrator shall be
personally liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the direction of
Holders of Certificates entitled to greater than 50% of the Percentage
Interests (or such other percentage as is specified herein) of each
affected Class, or of the aggregate Voting Rights of the Certificates,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee or the Bond Administrator, or
exercising any trust or power conferred upon the Trustee or the Bond
Administrator, under this Agreement;
(iv) Neither the Trustee, nor the Bond Administrator nor any of
their respective directors, officers, employees, agents or control
persons shall be responsible for any act or omission of any Custodian,
Paying Agent or Certificate Registrar that is not an Affiliate of the
Trustee or the Board Administrator, as applicable, and that is selected
other than by the Trustee or the Bond Administrator, performed or
omitted in compliance with any custodial or other agreement, or any act
or omission of the Servicer, Special Servicer, the Depositor or any
other Person, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(v) Neither the Trustee nor the Bond Administrator shall be under
any obligation to appear in, prosecute or defend any legal action which
is not incidental to its respective duties as Trustee or Bond
Administrator in accordance with this Agreement (and, if it does, all
legal expenses and costs of such action shall be expenses and costs of
the Trust Fund), and the Trustee and the Bond Administrator shall be
entitled, as provided in Section 3.06 hereof, to be reimbursed therefor
from amounts on deposit in the Collection Account and identified on the
Trust Ledger, unless such legal action arises out of the negligence or
bad faith of the Trustee or the Bond Administrator or any breach of an
obligation, representation, warranty or covenant of the Trustee
contained herein; and
(vi) Neither the Trustee nor the Bond Administrator shall be
charged with knowledge of any act, failure to act or breach of any
Person upon the occurrence of which the Trustee or the Bond
Administrator may be required to act, unless a Responsible Officer of
the Trustee or Bond Administrator obtains actual knowledge of such
failure. Neither the Trustee nor the Bond Administrator shall be deemed
to have actual knowledge of the Servicer's or the Special Servicer's
failure to provide scheduled reports, certificates and statements when
and as required to be delivered to the Trustee or the Bond
Administrator pursuant to this Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee or the Bond Administrator in its
capacity as Bond Administrator to expend or risk its own funds, or otherwise
incur financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if in the opinion of the Trustee
or the Bond Administrator, respectively, the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee or the Bond Administrator to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer or the Special
Servicer under this Agreement, except during such time, if any, as the Trustee
shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer or the Special Servicer in accordance with the terms
of this Agreement. Neither the Trustee nor the Bond Administrator shall be
required to post any surety or bond of any kind in connection with its
performance of its obligations under this Agreement and neither the Trustee nor
the Bond Administrator shall be liable for any loss on any investment of funds
pursuant to this Agreement. Notwithstanding any other provision hereof, however,
whenever acting as or instead of the Servicer or Special Servicer hereunder, the
Trustee or the Bond Administrator (as the case may be) shall comply with the
Servicing Standard.
Section 8.02 Certain Matters Affecting the Trustee and the Bond
Administrator. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee and the Bond Administrator may request and/or
rely upon and shall be protected in acting or refraining from acting
upon any resolution, Officers' Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties and neither the Trustee nor
the Bond Administrator shall have responsibility to ascertain or
confirm the genuineness of any such party or parties;
(ii) The Trustee and the Bond Administrator may consult with
counsel and 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 with such
Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Bond Administrator shall be
under any obligation to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the
Trustee or the Bond Administrator reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred
therein or thereby, provided that nothing contained herein shall
relieve the Trustee of the obligations, upon the occurrence of an Event
of Default (which has not been cured or waived) of which a Responsible
Officer of the Trustee has actual knowledge, 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 person would
exercise or use under the circumstances in the conduct of such person's
own affairs; and (B) the right of the Trustee or the Bond Administrator
to perform any discretionary act enumerated in this Agreement shall not
be construed as a duty, and the Trustee or the Bond Administrator shall
not be answerable for other than its negligence or willful misconduct
in the performance of any such act;
(iv) Neither the Trustee nor the Bond Administrator nor any of
their directors, officers, employees, Affiliates, agents or "control"
persons within the meaning of the Act shall be personally liable for
any action taken, suffered or omitted by it in good faith and
reasonably believed by the Trustee or the Bond Administrator, as
applicable to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Neither the Trustee shall nor the Bond Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or
document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% (or such other percentage as is
specified herein) of the Percentage Interests of any affected Class;
provided, however, that if the payment within a reasonable time to the
Trustee or the Bond Administrator 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 or Bond Administrator, not reasonably
assured to the Trustee or the Bond Administrator by the security
afforded to it by the terms of this Agreement, the Trustee or the Bond
Administrator may require reasonable indemnity against such expense or
liability as a condition to taking any such action. The reasonable
expense of every such investigation shall be paid by the Servicer or
the Special Servicer if an Event of Default shall have occurred and be
continuing relating to the Servicer, or the Special Servicer,
respectively, and otherwise by the Certificateholders requesting the
investigation; and
(vi) The Trustee and the Bond Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys but shall not be relieved
of the obligations hereunder.
(b) Following the Startup Day, neither the Trustee nor the Bond
Administrator shall, except as expressly required by any provision of this
Agreement, accept any contribution of assets to the Trust Fund unless the
Trustee and the Bond Administrator shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or either Loan
REMIC to fail to qualify as a REMIC, or the Grantor Trust to fail to qualify as
a grantor trust, at any time that any Certificates are outstanding or subject
any of the Upper-Tier REMIC, the Lower-Tier REMIC or either Loan REMIC to any
tax under the REMIC Provisions or other applicable provisions of federal, state
and local law or ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
Neither the Trustee nor the Bond Administrator shall have a duty
to conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Mortgage Loan by any Mortgage Loan Seller
pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes
of this Agreement.
Section 8.03 Trustee and Bond Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates shall not be taken as the statements of the Trustee, the Bond
Administrator, the Servicer, or the Special Servicer and the Trustee, the Bond
Administrator, the Servicer and the Special Servicer assume no responsibility
for their correctness. The Trustee, the Bond Administrator, the Servicer and the
Special Servicer make no representations or warranties as to the validity or
sufficiency of this Agreement, of the Certificates or any prospectus used to
offer the Certificates for sale or the validity, enforceability or sufficiency
of any Mortgage Loan, or related document. Neither the Trustee nor the Bond
Administrator shall at any time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage, any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement. Without limiting the foregoing, neither
the Trustee nor the Bond Administrator shall be liable or responsible for: the
existence, condition and ownership of any Mortgaged Property; the existence of
any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02) or
the enforceability thereof; the existence of any Mortgage Loan or the contents
of the related Mortgage File on any computer or other record thereof (other than
if the Trustee shall assume the duties of the Servicer or the Special Servicer
pursuant to Section 7.02); the validity of the assignment of any Mortgage Loan
to the Trust Fund or of any intervening assignment; the completeness of any
Mortgage File; the performance or enforcement of any Mortgage Loan (other than
if the Trustee shall assume the duties of the Servicer or the Special Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Servicer or the
Special Servicer with any warranty or representation made under this Agreement
or in any related document or the accuracy of any such warranty or
representation prior to the Trustee's receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Servicer or any loss resulting therefrom, the acts or
omissions of any of the Depositor, the Servicer or the Special Servicer (other
than if the Trustee shall assume the duties of the Servicer or Special Servicer
pursuant to Section 7.02) or any subservicer or any Borrower; any action of the
Servicer or Special Servicer (other than if the Trustee shall assume the duties
of the Servicer or Special Servicer pursuant to Section 7.02) or any subservicer
taken in the name of the Trustee, except to the extent such action is taken at
the express written direction of the Trustee; the failure of the Servicer or the
Special Servicer or any subservicer to act or perform any duties required of it
on behalf of the Trust Fund or the Trustee hereunder; or any action by or
omission of the Trustee taken at the instruction of the Servicer or the Special
Servicer (other than if the Trustee shall assume the duties of the Servicer or
the Special Servicer pursuant to Section 7.02) unless the taking of such action
is not permitted by the express terms of this Agreement; provided, however, that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties as specifically set forth in this Agreement. Neither the Trustee nor the
Bond Administrator shall be accountable for the use or application by the
Depositor, the Servicer or the Special Servicer of any of the Certificates or of
the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor, the Servicer or the Special Servicer in respect of the
assignment of the Mortgage Loans or deposited in or withdrawn from the
Collection Account, the Distribution Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Lock-Box Account, the Cash
Collateral Account, Reserve Accounts, the Default Interest Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account or the
Excess Interest Distribution Account or any other account maintained by or on
behalf of the Servicer or the Special Servicer, other than any funds held by the
Trustee. Neither the Trustee nor the Bond Administrator shall have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall have
become the successor Servicer) or to record this Agreement. In making any
calculation hereunder which includes as a component thereof the payment or
distribution of interest for a stated period at a stated rate "to the extent
permitted by applicable law," the Trustee and the Bond Administrator shall
assume that such payment is so permitted unless a Responsible Officer of the
Trustee or the Bond Administrator has actual knowledge, or receives an Opinion
of Counsel (at the expense of the Person asserting the impermissibility) to the
effect, that such payment is not permitted by applicable law. The Depositor is
not obligated to monitor or supervise the performance of the Trustee or the Bond
Administrator under this Agreement or otherwise.
Section 8.04 Trustee and Bond Administrator May Own Certificates.
The Trustee, the Bond Administrator and any agent of the Trustee and Bond
Administrator in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor and the
Servicer in banking transactions, with the same rights it would have if it were
not Trustee, Bond Administrator or such agent.
Section 8.05 Payment of Trustee's and Bond Administrator's Fees
and Expenses; Indemnification. (a) On each Distribution Date, prior to the
distribution of amounts to the Certificateholders the Bond Administrator shall
be entitled to pay itself and the Trustee the Trustee Fee as reasonable
compensation from amounts remitted to the Lower-Tier Distribution Account (which
shall not be limited by any provision of law in regard to the compensation of a
trustee or a bond administrator of an express trust) for all services rendered
by it and the Trustee in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties of the Trustee or the
Bond Administrator hereunder at the Trustee Fee Rate from which an amount equal
to the Bond Administrator Fee shall be paid to the Bond Administrator and the
remainder shall be paid to the Trustee.
(b) In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(c) The Trustee and the Bond Administrator shall each be paid or
reimbursed by the Trust Fund upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or the Bond
Administrator pursuant to and in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ),
which, to the extent not previously paid pursuant to Section 3.06(e), the Bond
Administrator will be entitled to withdraw from the Distribution Account prior
to the distribution to Certificateholders to the extent set forth herein and to
the extent such payments are "unanticipated expenses incurred by the REMIC"
within the meaning of Treasury Regulations Section l.860G-1(b)(iii) except any
such expense, disbursement or advance as may arise from its negligence or bad
faith; provided, however, that, subject to the last paragraph of Section 8.01,
neither the Trustee nor the Bond Administrator shall refuse to perform any of
its duties hereunder solely as a result of the failure to be paid the Trustee
Fee and the Trustee's expenses or any sums due to the Bond Administrator. The
term "unanticipated expenses incurred by the REMIC" shall include any fees,
expenses and disbursement of any separate Trustee or co-Trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date and are attributable to any Trust
REMIC or the Grantor Trust and the losses, liabilities, damages, claims or
expenses (including reasonable attorneys' fees) incurred or advanced by an
Indemnified Party in connection with any litigation arising out of this
Agreement attributable to any Trust REMIC or the Grantor Trust, including,
without limitation, under Section 2.03, Section 3.10, the third paragraph of
Section 3.11, Section 4.05 and Section 7.01.
The Servicer and the Special Servicer covenant and agree to pay
or reimburse the Trustee and the Bond Administrator for the reasonable expenses,
disbursements and advances incurred or made by the Trustee and the Bond
Administrator in connection with any transfer of the servicing responsibilities
of the Servicer or the Special Servicer, respectively, hereunder, pursuant to or
otherwise arising from the resignation or removal of the Servicer, in accordance
with any of the provisions of this Agreement (and including the reasonable fees
and expenses and disbursements of its counsel and all other persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from the negligence or bad faith of the Trustee or the Bond
Administrator.
(d) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Servicer and the Special Servicer (each, an
"Indemnifying Party") shall indemnify the Trustee and the Bond Administrator and
their respective Affiliates and each of the directors, officers, employees and
agents of the Trustee, the Bond Administrator and their respective Affiliates
(each, an "Indemnified Party"), and hold each of them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that the Indemnified Party may sustain in connection with this
Agreement (including, without limitation, reasonable fees and disbursements of
counsel incurred by the Indemnified Party in any action or proceeding between
the Indemnifying Party and the Indemnified Party or between the Indemnified
Party and any third party or otherwise) related to each such Indemnifying
Party's respective willful misconduct, bad faith, fraud or negligence in the
performance of each of its respective duties hereunder or by reason of reckless
disregard of its respective obligations and duties hereunder (including in the
case of the Servicer, any agent of the Servicer or subservicer).
(e) The Trust Fund shall indemnify each Indemnified Party from,
and hold it harmless against, any and all losses, liabilities, damages, claims
or unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates other than (i) those resulting from the
negligence, fraud, bad faith or willful misconduct of the Indemnified Party and
(ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(d). The right of reimbursement of the Indemnified
Parties under this Section 8.05(e) shall be senior to the rights of all
Certificateholders.
(f) Notwithstanding anything herein to the contrary, this Section
8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee or the Bond Administrator, as the case may
be, as regards rights accrued prior to such resignation or removal and (with
respect to any acts or omissions during their respective tenures) the
resignation, removal or termination of the Servicer, the Special Servicer, the
Paying Agent, the Certificate Registrar or the Custodian.
(g) This Section 8.05 shall be expressly construed to include,
but not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate to
any environmental law or environmental matter.
Section 8.06 Eligibility Requirements for Trustee and Bond
Administrator. Each of the Trustee and Bond Administrator hereunder shall at all
times be a corporation or 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, its
long-term unsecured debt obligations must be rated at least "AA" (without regard
to a +/- qualification) or the equivalent by each Rating Agency, and such
appointment must, so long as Fitch is then rating any Certificates, not result
in the downgrade, qualification or withdrawal of the then-current ratings
assigned to the Certificates, as evidenced in writing by Fitch, and shall be
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer (except during any period when the Trustee
has assumed the duties of the Servicer pursuant to Section 7.02); provided that,
notwithstanding that the long-term unsecured debt of Wells Fargo Bank Minnesota
N.A. and LaSalle Bank National Association are not rated by Fitch, Wells Fargo
Bank Minnesota N.A. shall not fail to qualify as Trustee or that LaSalle Bank
National Association shall not fail to qualify as Bond Administrator solely by
virtue of the lack of such ratings until such time as Fitch shall notify the
Trustee, the Bond Administrator, the Servicer and the Special Servicer in
writing that Wells Fargo Bank Minnesota or LaSalle Bank National Association, as
applicable, is no longer exempt from the foregoing rating requirements imposed
by this sentence. If a corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If the place of business from which the Trustee administers the
Trust Fund is a state or local jurisdiction that imposes a tax on the Trust Fund
or the net income of any Trust 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 and continue as Trustee or (iii) administer the Trust Fund from a
state and local jurisdiction that does not impose such a tax. If at any time the
Trustee or the Bond Administrator shall cease to be eligible in accordance with
the provisions of this Section, the Trustee or Bond Administrator, as
applicable, shall resign immediately in the manner and with the effect specified
in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee or Bond
Administrator. The Trustee or the Bond Administrator may at any time resign and
be discharged from the trusts hereby created by giving written notice thereof to
the Trustee or the Bond Administrator, as applicable, and to the Depositor, the
Servicer, the Special Servicer and each Rating Agency. Upon such notice of
resignation from the Trustee, the Servicer shall promptly appoint a successor
Trustee, the appointment of which is subject to the requirements contained in
Section 8.06. Upon such notice of resignation from the Bond Administrator, the
Trustee shall promptly appoint a successor Bond Administrator the appointment of
which is subject to the requirements contained in Section 8.06. If no successor
Trustee or Bond Administrator shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee or Bond Administrator may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Bond Administrator.
If at any time the Trustee or the Bond Administrator shall cease
to be eligible in accordance with the provisions of Section 8.06 and shall fail
to resign after written request therefor by the Depositor or Servicer, or if at
any time the Trustee or the Bond Administrator shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or a receiver of either the Trustee
or the Bond Administrator or of its property or the Bond Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or, so long as any Certificate is then rated by
Fitch, upon a confirmation in writing by Fitch that not terminating the Trustee,
or the Bond Administrator, as applicable, would, in and of itself, cause the
then-current rating assigned to any Class of Certificates to be qualified,
withdrawn or downgraded, then the Depositor or the Servicer may remove the
Trustee or the Bond Administrator and the Servicer shall promptly appoint a
successor Trustee or the Bond Administrator by written instrument, which shall
be delivered to the Trustee and or the Bond Administrator so removed and to the
successor Trustee and or successor Bond Administrator.
The Holders of Certificates entitled to at least 50% of the
Voting Rights may at any time remove the Trustee and or the Bond Administrator
and appoint a successor Trustee or successor Bond Administrator by written
instrument or instruments, in seven originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Trustee or Bond Administrator, as applicable, so removed, and one
complete set to the successor Trustee or Bond Administrator, as applicable.
In addition, if the Trustee or the Bond Administrator is
terminated without cause, the terminating party shall pay all of the expenses of
the Trustee or the Bond Administrator, as applicable, necessary to effect the
transfer of its responsibilities to the successor Trustee or the Bond
Administrator.
In the event that the Trustee or Bond Administrator is terminated
or removed pursuant to this Section 8.07, all of its rights and obligations
under this Agreement and in and to the Mortgage Loans shall be terminated, other
than any rights or obligations that accrued prior to the date of such
termination or removal (including the right to receive all fees, expenses and
other amounts accrued or owing to it under this Agreement, plus interest at the
Advance Rate on all such amounts until received to the extent such amounts bear
interest as provided in this Agreement, with respect to periods prior to the
date of such termination or removal).
Any resignation or removal of the Trustee or Bond Administrator
and appointment of a successor Trustee or successor Bond Administrator and, if
such successor Trustee or successor Bond Administrator is not rated by each
Rating Agency in one of its two highest long-term debt rating categories
(without regard to a +/- or numerical designation), shall not become effective
until acceptance of appointment by the successor Trustee or successor Bond
Administrator, as applicable.
Section 8.08 Successor Trustee or Bond Administrator. (a) Any
successor Trustee and any successor Bond Administrator shall execute,
acknowledge and deliver to the Depositor, the Servicer and to the predecessor
Trustee or predecessor Bond Administrator, as the case may be, instruments
accepting their appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee or predecessor Bond Administrator shall become
effective and such successor Trustee and successor Bond Administrator, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee or Bond Administrator herein,
provided that such successor Trustee and successor Bond Administrator shall
satisfy the requirements contained in Section 8.06. The predecessor Trustee
shall deliver to the successor Trustee all Mortgage Files and related documents
and statements held by it hereunder, and the Depositor and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor Trustee all such rights, powers, duties and obligations. No
successor Trustee or successor Bond Administrator shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor Trustee or successor Bond Administrator shall be eligible under the
provisions of Section 8.06.
Upon acceptance of appointment by a successor Trustee or a
successor Bond Administrator as provided in this Section 8.08, the Depositor
shall mail notice of the succession of such Trustee or Bond Administrator
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or successor Bond Administrator
appointed pursuant to this Agreement shall satisfy the eligibility requirements
set forth in Section 8.06 hereof.
Section 8.09 Merger or Consolidation of Trustee or Bond
Administrator. Any corporation into which the Trustee or Bond Administrator may
be merged or converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which the Trustee or
Bond Administrator shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee or Bond Administrator, as applicable, hereunder,
provided that such corporation 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.
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
Depositor 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 (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-Trustee or separate Trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. 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.
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 (it being understood that such separate Trustee or co-Trustee
is not authorized to act separately without the Trustee joining in such act),
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 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 solely at the direction of the Trustee.
No Trustee under this Agreement shall be personally liable by
reason of any act or omission of any other Trustee under this Agreement. The
Depositor and the Trustee acting jointly may at any time accept the resignation
of or remove any separate Trustee or co-Trustee, or if the separate Trustee or
co-Trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate Trustee or co-Trustee.
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. Every such instrument shall be filed with
the Trustee. 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. In no
event shall any such separate Trustee or co-Trustee be entitled to any provision
relating to the conduct of, affecting the liability of or affording protection
to such separate Trustee or co-Trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
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.
Section 8.11 Companion Paying Agent.
(a) The Bond Administrator shall be the initial Companion Paying
Agent hereunder. The Companion Paying Agent undertakes to perform such duties
and only such duties as are specifically set forth herein. The Companion Paying
Agent shall promptly make available all reports delivered to it under this
Agreement to the Companion Holders.
(b) No provision of this Agreement shall be construed to relieve
the Companion Paying Agent from liability for its own negligent failure to act,
bad faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement, the Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into Agreement against the Companion
Paying Agent and, in the absence of bad faith on the part of the part of the
Companion Paying Agent, the Companion Paying Agent may conclusively rely, as to
the truth and correctness of the statements or conclusions expressed therein,
upon any resolutions, certificates, statements, opinions, reports, documents,
orders or other instrument furnished to the Companion Paying Agent by any Person
and which on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Bond Administrator
pursuant to Article VIII of this Agreement, the Companion Paying Agent shall be
deemed simultaneously to resign or be removed.
(d) The Companion Paying Agent shall be indemnified (first by the
Companion Holders to the extent of amounts in the Collection Account and
identified on the related Companion Ledgers as attributable to such Companion
Loans (applied pro rata in accordance with the amounts therein relating to each
Companion Loan) and then to the extent of amounts in the Collection Account
identified on the Trust Ledger, solely to the extent amounts attributable to the
Companion Loans are insufficient) from, and held harmless against, any and all
losses, liabilities, damages or claims incurred in connection with any legal
action relating to this Agreement or unanticipated "out-of-pocket" expenses
(other than the expense of any employee's compensation and any expense allocable
to the Companion Paying Agent's overhead, but including reasonable attorney's
fees) arising in respect of this Agreement other than those resulting from the
negligence, bad faith, intentional breach of this Agreement or willful
misconduct of the Companion Paying Agent. Notwithstanding the foregoing, in the
event of any loss, liability or expense described in the preceding sentence
relates to a Loan Pair or related Mortgaged Property, only the related Companion
Holder (and not any unrelated Companion Holder) shall be required to indemnify
such Persons specified in such sentence, and such indemnification shall be made
only from amounts otherwise distributable to such Companion Holder.
(e) This Section shall survive the termination of this Agreement
or the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 8.12 Companion Register.
The Companion Paying Agent shall maintain a register (the
"Companion Register") on which it will record the names and addresses of, and
wire transfer instructions for, the Companion Holders from time to time, to the
extent such information is provided in writing to it by the Companion Holders.
The initial Companion Holders, along with their names, addresses, wiring
instructions and tax identification numbers, are listed on Schedule II hereto.
Each of the Companion Holders hereby agrees to inform the Companion Paying Agent
of its name, address, wiring instructions and taxpayer identification number and
of any transfer thereof. Upon the sale of any Companion Loan or portion thereof,
the transferring Companion Holder shall inform the Companion Paying Agent in
writing that such transfer has taken place and provide the Companion Paying
Agent with the name, address, wiring instructions and tax identification number
of the transferee. In the event a Companion Holder transfers a Companion Loan
without notice to the Companion Paying Agent, the Companion Paying Agent shall
have no liability for any misdirected payment in such Companion Loan and shall
have no obligation to recover and redirect such payment.
The Companion Paying Agent shall promptly provide the names and
addresses of the Companion Holders to any party hereto or any successor
Companion Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such names
and addresses.
ARTICLE IX
TERMINATION
Section 9.01 Termination. (a) The respective obligations and
responsibilities of the Servicer, the Special Servicer, the Depositor, the
Trustee and the Bond Administrator created hereby with respect to the
Certificates (other than the obligations of the Bond Administrator to make
certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate upon the earliest to occur of (i) the
repurchase of the Mortgage Loans by the Servicer or the Holder of the
Controlling Class representing greater than a 50% Percentage Interest in such
Class as described in Section 9.01(c); and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to this Agreement of the
last asset held by the Trust Fund; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of twenty-one years from the
death of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the United Kingdom, living on the date
hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC
shall be terminated and the assets of the Trust Fund shall be sold or otherwise
disposed of in connection therewith, only pursuant to a "plan of complete
liquidation" within the meaning of Code Section 860F(a)(4)(A) providing for the
actions contemplated by the provisions hereof and pursuant to which the
applicable Notice of Termination is given, and requiring that the Trust Fund,
the Upper-Tier REMIC and the Lower-Tier REMIC shall terminate on a Distribution
Date occurring not more than 90 days following the date of adoption of the plan
of complete liquidation. For purposes of this Section 9.01(b), the Notice of
Termination given pursuant to Section 9.01(c) shall constitute the adoption of
the plan of complete liquidation as of the date such notice is given, which date
shall be specified by the Servicer in the final federal income tax returns of
the Upper-Tier REMIC and the Lower-Tier REMIC. The Loan REMICs shall be
terminated in such a complete liquidation simultaneously with the Upper-Tier
REMIC and the Lower-Tier REMIC and in accordance with the provisions of the
respective Loan REMIC Declarations; provided, that any Loan REMIC shall
terminate without liquidation on any earlier Distribution Date following a Final
Recovery Determination or other payment in full with respect to the related
Mortgage Loan. Notwithstanding the termination of the Trust REMICs or the Trust
Fund, the Bond Administrator shall be responsible for filing the final Tax
Returns for the Trust REMICs and applicable income tax or information returns
for the Grantor Trust for the period ending with such termination, and shall
retain books and records with respect to the Trust REMICs and the Grantor Trust
for the same period of retention for which it maintains its own tax returns or
such other reasonable period. The Trustee shall sign all Tax Returns and other
reports required by this Section promptly after receipt thereof from the Bond
Administrator.
(c) Any Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such Class and, if no such Holder exercises such
option, the Servicer, may effect an early termination of the Trust Fund, upon
not less than 30 days' prior Notice of Termination given to the Trustee, the
Bond Administrator and the Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the month
preceding such Distribution Date (less any P&I Advances
previously made on account of principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30 days
prior to the last day of the month preceding such Distribution
Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged Property
has been acquired) at the Mortgage Rate (plus the Excess Rate, to
the extent applicable), to the last day of the month preceding
such Distribution Date (less any P&I Advances previously made on
account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees and
Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan in the Trust Fund,
on the last day of the month preceding such Distribution Date, as determined by
an Independent appraiser acceptable to the Servicer as of a date not more than
30 days prior to the last day of the month preceding such Distribution Date,
together with one month's interest thereon at the Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
As a condition to the purchase of the assets of the Trust Fund
pursuant to this Section 9.01(c), the purchaser shall deliver to the Bond
Administrator an Opinion of Counsel, which shall be at the expense of such
purchaser, stating that such termination will be a "qualified liquidation" under
Section 860F(a)(4)(A) of the Code. All costs and expenses incurred by any and
all parties to this Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to
this Section 9.01(c) shall be borne by the party exercising its purchase rights
hereunder. The Trustee and the Bond Administrator shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding,
the holders of the Class Q-1 Certificates shall receive that portion of the
proceeds of a sale of the assets of the Trust Fund allocable to the Net Default
Interest, as their interests may appear, and the holders of the Class Q-2
Certificates shall receive that portion of the proceeds of a sale of the assets
of the Trust Fund allocable the to Excess Interest allocable to each such Class,
as their interests may appear.
(d) If the Trust Fund has not been previously terminated pursuant
to subsection (c) of this Section 9.01, the Bond Administrator shall determine
as soon as practicable the Distribution Date on which the Bond Administrator
reasonably anticipates, based on information with respect to the Mortgage Loans
previously provided to it, that the final distribution will be made (i) to the
Holders of outstanding Regular Certificates, and to the Bond Administrator in
respect of outstanding Lower-Tier Regular Interests, notwithstanding that such
distribution may be insufficient to distribute in full the Certificate Balance
or Lower-Tier Balance of each Class of Certificates or Lower-Tier Regular
Interests, respectively, or the Loan REMIC Balance of either Loan REMIC Regular
Interest, as the case may be, together with amounts required to be distributed
on such Distribution Date pursuant to Section 4.01(a), (b), or (c); or (ii) if
no such Classes of Certificates are then outstanding, to the Holders of the
Class LR Certificates of any amount remaining in the Collection Account or the
Lower-Tier Distribution Account, and to the Holders of the Class R Certificates
of any amount remaining in the Upper-Tier Distribution Account, and (iii) to the
Holders of the Class Q-1 and Class Q-2 Certificates, any amounts beneficially
owned by such Holders in respect of their respective interests in the Grantor
Trust, in any case, following the later to occur of (A) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund or (B) the liquidation or disposition pursuant to Section 3.18 of the last
asset held by the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to this
Section 9.01 shall be mailed by the Bond Administrator to affected
Certificateholders and each Companion Holder with a copy to the Servicer and
each Rating Agency at their addresses shown in the Certificate Registrar or the
Companion Register as soon as practicable after the Bond Administrator shall
have received, given or been deemed to have received a Notice of Termination but
in any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Bond Administrator to
affected Certificateholders and each Companion Holder shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of
the Classes specified therein;
(ii) specify the amount of any such final distribution, if known;
and
(iii) state that the final distribution to Certificateholders
will be made only upon presentation and surrender of Certificates at
the office of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Bond Administrator shall promptly mail notice thereof to each
affected Certificateholder and each Companion Holder.
(f) Any funds not distributed on the Termination Date because of
the failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to the Bond Administrator all amounts distributable to
the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator hereunder and the transfer of such amounts to a successor
Bond Administrator and (ii) the termination of the Trust Fund and distribution
of such amounts to the Residual Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Counterparts. 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 10.02 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, or 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, or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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, and
nothing herein set forth, or contained in the terms of the Certificates, shall
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; and no Certificateholder shall be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement or any Mortgage Loan, unless such Holder previously shall have given
to the Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates of any Class shall have any right in any manner whatever 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, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.04 Notices. All demands, notices and communications
hereunder shall be in writing, shall be deemed to have been given upon receipt
(except that notices to Holders of Class Q-1, Class Q-2, Class R and Class LR
Certificates or Holders of any Class of Certificates no longer held through a
Depository and instead held in registered, definitive form shall be deemed to
have been given upon being sent by first class mail, postage prepaid or by
overnight courier) as follows:
If to the Trustee, to:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
If to the Bond Administrator:
LaSalle Bank National Association
135 S. LaSalle Street
Chicago, IL 60603
Attention: Asset Backed Securities Trust Services Group,
COMM 2000-C1
If to the Depositor, to:
Deutsche Mortgage & Asset Receiving Corporation
One International Place, Room 520
Boston, Maryland 02110
Attention: R. Douglas Donaldson
With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Anna H. Glick
If to the Servicer, to:
Orix Real Estate Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75021
Attention: Edgar L. Smith, II
With a copy to:
Orix Real Estate Capital Markets, LLC
1717 Main Street, 12th Floor
Dallas, Texas 75201
Attention: Paul Smyth
If to the Special Servicer, to:
Orix Real Estate Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75021
Attention: Edgar L. Smith, II
With a copy to:
Orix Real Estate Capital Markets, LLC
1717 Main Street, 12th Floor
Dallas, Texas 75201
Attention: Paul Smyth
If to the German American Capital Corporation, to:
German American Capital Corporation
31 West 52nd Street
New York, New York 10019
Attention: Greg Hartch
If to Morgan Guaranty Trust Company of New York, to:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10038
Attention: Nancy Alto
If to LaSalle Bank National Association, as Mortgage Loan Seller,
to:
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Margaret Govern
If to the Underwriters, to:
Deutsche Bank Securities, Inc.
Commercial Mortgage-Backed Securities
31 West 52nd Street
New York, New York 10019
Attention: Greg Hartch
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Brian Baker
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: [__________]
If to any Certificateholder, to:
the address set forth in the Certificate Register,
If to the holder of the Crowne Plaza Loan, to:
L-O Broadway Investments, Inc.
c/o Lowe Enterprises Investments, Inc.
140 Pacific Avenue
San Francisco, California 94111
Attention: Ronald E. Silva
Fax No. (415) 834-1475
with a copy to:
Lowe Enterprises Investment Management, Inc.
11777 San Vicente Boulevard, Suite 900
Los Angeles, California 90049
Attention: Bleecker Seaman,
Fax No. (310) 207-1132
If to the holder of the Alliance Companion Loan or the Crystal
Park Companion Loan, to:
German American Capital Corporation
31 West 52nd Street
New York, New York 10019
Attention: Greg Hartch
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
Section 10.05 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, to the extent permitted by applicable
law, 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 10.06 Notice to the Depositor and Each Rating Agency.
(a) The Bond Administrator shall use its best efforts to promptly provide
notice to the Depositor, the Underwriters, the Directing Certificateholder and
if a Loan Pair is involved, the related Companion Holder (or Operating Advisor
acting on its behalf) and each Rating Agency with respect to each of the
following of which a Responsible Officer of the Bond Administrator 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 merger, consolidation, resignation or termination of
the Servicer, the Special Servicer, the Trustee or the Bond
Administrator;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d)
or 2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the
Distribution Account, the Lower-Tier Distribution Account or the
Upper-Tier Distribution Account; and
(vii) each report to Certificateholders described in Section 4.02
and Section 3.22.
(b) The Servicer shall promptly furnish to each Rating Agency
(and to each Companion Holder, the items set forth in items (iii) through (viii)
and (x) below, except that each Companion Holder shall receive only such
information as concerns the related Loan Pair or Mortgaged Property) copies of
the following:
(i) in the case of Fitch, each of the reports delivered pursuant
to Section 3.13(c), Section 3.13(e) or Section 3.13(f);
(ii) each of its annual statements as to compliance described in
Section 3.14;
(iii) each of its annual independent public accountants'
servicing reports described in Section 3.15;
(iv) a copy of each rent roll and each operating and other
financial statement and occupancy reports, to the extent such
information is required to be delivered under a Mortgage Loan or Loan
Pair, in each case to the extent collected pursuant to Section 3.03;
however, with respect to Fitch, the Servicer shall provide only the
quarterly and annual statements or reports;
(v) a copy of any notice with respect to a breach of a
representation or warranty with respect to any Mortgage Loan or Loan
Pair;
(vi) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(vii) any change in the lien priority of a Mortgage Loan or Loan
Pair;
(viii) any new lease of an anchor or a termination of an anchor
lease at a retail Mortgaged Property;
(ix) any material damage to a Mortgaged Property; and
(x) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan or Loan Pair.
(c) The Servicer shall furnish each Rating Agency, the Depositor
and each Companion Holder with such information with respect to the Trust Fund,
a Mortgaged Property, a Borrower and a Specially Serviced Loan as such Rating
Agency, the Depositor or Companion Holder shall reasonably request and which the
Servicer can reasonably obtain. The Rating Agencies and the Companion Holders
shall not be charged any fee or expense in connection therewith. The Servicer
shall send copies to the Depositor of any information provided to any Rating
Agency.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch, Inc.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Telecopy: (212) 635-0295
Standard & Poor's Ratings Services
55 Water Street
New York, New York 10007
Attention: Commercial Mortgage Surveillance Group
Telecopy: (212) 438-2657
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
Section 10.07 Amendment. This Agreement or any Custodial
Agreement may be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Bond Administrator, without the consent of
any of the Certificateholders or any Companion Holder, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein or therein that
may be defective or inconsistent with any other provisions herein or therein,
(iii) to amend any provision hereof to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Regular
Certificates by each Rating Agency (provided such amendment does not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto), (iv) to amend or supplement any
provisions herein or therein (provided that such amendment does not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto), as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be inconsistent with the provisions of this Agreement (provided
such amendment does not adversely affect in any material respect the interests
of any Certificateholder or Companion Holder not consenting thereto) and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
This Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator with the consent of (x) the Holders of each
of the Classes of Regular Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment and
(y) each Companion Holder 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
Certificateholders or Companion Holders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which are
required to be distributed to any Companion Holder or on any
Certificate without the consent of the related Companion Holder or the
Holders of Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which are
required to consent to any action or inaction under this Agreement,
without the consent of the Holders of Certificates representing all of
the Percentage Interests of the Class or Classes affected hereby or
each Companion Holder;
(iii) alter the Servicing Standard or the obligations of the
Servicer or the Trustee to make a P&I Advance or the Servicer, the
Special Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates representing
all of the Percentage Interests of the Class or Classes affected
thereby and the Companion Holders (except with respect to a P&I
Advance); or
(iv) amend any section hereof which relates to the amendment of
this Agreement without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or Classes
affected thereby or the consent of the Companion Holder of each
Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary to maintain the qualification of the Trust REMICs as REMICs,
or to prevent the imposition of any additional material state or local taxes, at
all times that any Certificates are outstanding; provided, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder or any Companion Holder.
In the event that neither the Depositor nor any successor
thereto, if any, is in existence, any amendment under this Section 10.07 shall
be effective with the consent of the Trustee, the Bond Administrator, and the
Servicer, in writing, and to the extent required by this Section, the
Certificateholders and/or the Companion Holders. Promptly after the execution of
any amendment, the Servicer shall forward to the Trustee and the Bond
Administrator and the Bond Administrator shall furnish written notification of
the substance of such amendment to each Certificateholder, each Companion Holder
and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.07 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The method of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders or Companion
Holders shall be subject to such reasonable regulations as the Bond
Administrator may prescribe; provided, however, that such method shall always be
by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless the
Trustee and the Bond Administrator shall have received an Opinion of Counsel, at
the expense of the party requesting such amendment (or, if such amendment is
required by either Rating Agency to maintain the rating issued by it or
requested by the Trustee for any purpose described in clause (i), (ii) or (iii)
of the first sentence of this Section, then at the expense of the Trust Fund),
to the effect that such amendment will not cause any of the Upper-Tier REMIC,
Lower-Tier REMIC or either Loan REMIC to fail to qualify as a REMIC at any time
that any REMIC Certificates are outstanding or cause a tax to be imposed on the
Trust Fund or any Trust REMIC under the REMIC Provisions (other than a tax at
the highest marginal corporate tax rate on net income from foreclosure property)
or any other provision of federal, state or local law or ordinances, or cause
the Grantor Trust not to be treated as a grantor trust.
Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Bond Administrator, the Special Servicer
and the Servicer may request and shall be entitled to rely conclusively upon an
Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is required by either Rating Agency to maintain the rating
issued by it or requested by the Trustee for any purpose described in clause
(i), (ii), (iii) or (v) (which do not modify or otherwise relate solely to the
obligations, duties or rights of the Trustee) of the first sentence of this
Section, then at the expense of the Trust Fund and the Companion Holders)
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee and the Bond Administrator may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's or the
Bond Administrator's own rights, duties or immunities under this Agreement.
Section 10.08 Confirmation of Intent. It is the express intent of
the parties hereto that the conveyance of the Trust Fund (including the Mortgage
Loans) by the Depositor to the Trustee on behalf of Certificateholders as
contemplated by this Agreement and the sale by the Depositor of the Certificates
be, and be treated for all purposes as, a sale by the Depositor of the undivided
portion of the beneficial interest in the Trust Fund represented by the
Certificates. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Trust Fund by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of the parties, the Trust Fund is held to
continue to be property of the Depositor then (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Trust Fund provided for herein shall be deemed to be a grant by the Depositor to
the Trustee on behalf of Certificateholders of a first priority security
interest in all of the Depositor's right, title and interest in and to the Trust
Fund and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Distribution Account, the Lower-Tier
Distribution Account, the Interest Reserve Account, the Upper-Tier Distribution
Account, the Default Interest Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee (or the Custodian on its behalf) of
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the Delaware and Massachusetts Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
Section 10.09 No Intended Third-Party Beneficiaries. No Person
other than a party to this Agreement, any Certificateholder and any Companion
Holder shall have any rights with respect to the enforcement of any of the
rights or obligations hereunder. Without limiting the foregoing, the parties to
this Agreement specifically state that no Borrower, property manager or other
party to a Mortgage Loan is an intended third-party beneficiary of this
Agreement.
Section 10.10 No Recourse. No recourse under any obligation,
covenant or agreement of the Depositor contained in this Agreement shall be had
against J.H. Management Corporation ("JHM"), JH Holdings Corporation ("JHHC") or
any incorporator, stockholder, officer, director or employee of the Depositor,
JHM or JHHC, by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute or otherwise; it being expressly agreed and
understood that this Agreement is solely a corporate obligation of the
Depositor, and that no personal liability whatever shall attach to or be
incurred by the incorporators, stockholders, officers, directors or employees of
the Depositor, JHM or JHHC, or any of them under or by reason of any of the
obligations, covenants or agreements of the Depositor contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by the Depositor of any of such obligations, covenants or agreements
either at common law or at equity, or by statute or constitution, of JHM or JHHC
and every such incorporator, stockholder, officer, director or employee is
hereby expressly waived as a condition of and in consideration for the execution
of this Agreement; provided, however, that nothing in this Section 10.10 shall
relieve any of the foregoing persons or entities from any liability arising from
his, her or its fraudulent conduct, willful misconduct or intentional
misrepresentation.
Section 10.11 Entire Agreement. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understanding, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersedes any course of performance or
usage of the trade inconsistent with any of the terms hereof.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator have caused their names to be
signed hereto by their respective officers thereunto duly authorized all as of
the day and year first above written.
Signed and acknowledged DEUTSCHE MORTGAGE & ASSET
in the presence of RECEIVING CORPORATION,
as Depositor
/s/ RONALD J. CRUZ By: /s/ R. DOUGLAS DONALDSON
------------------------------------ -----------------------------------
Print Name: Ronald Cruz Name: R. DOUGLAS DONALDSON
---------------------------------
/s/ CHRIS HOEGLER Title: Treasurer
------------------------------------ --------------------------------
Print Name: Chris Hoegler
Signed and acknowledged ORIX REAL ESTATE CAPITAL
in the presence of MARKETS, LLC,
as Servicer
By: /s/ EDGAR L. SMITH
------------------------------------ -----------------------------------
Print Name: Name: Edgar L. Smith II
---------------------------------
Title: Chief Operating Officer
------------------------------------ --------------------------------
Print Name:
Signed and acknowledged ORIX REAL ESTATE CAPITAL
in the presence of MARKETS, LLC,
as Special Servicer
By: /s/ EDGAR L. SMITH
------------------------------------ ------------------------------------
Print Name: Name: Edgar L. Smith II
---------------------------------
Title: Chief Operating Officer
------------------------------------ --------------------------------
Print Name:
<PAGE>
Signed and acknowledged WELLS FARGO BANK MINNESOTA, N.A.,
in the presence of as Trustee
/s/ FRANK MILILLO By: /s/ LESLIE A. GASKILL
------------------------------------ ------------------------------------
Print Name: Frank Milillo Name: Leslie A. Gaskill
---------------------------------
/s/ RONALD M. FELDMAN Title: Vice President
------------------------------------ --------------------------------
Print Name: Ronald M. Feldman
Vice President
Signed and acknowledged LASALLE BANK NATIONAL ASSOCIATION,
in the presence of as Bond Administrator
/s/ DAVID H. HILL By: /s/ ALYSSA C. STAHL
------------------------------------ ------------------------------------
Print Name: David H. Hill Name: ALYSSA C. STAHL
---------------------------------
/s/ Paula Mott Title: ASSISTANT VICE PRESIDENT
------------------------------------ --------------------------------
Print Name: Paula Mott
<PAGE>
Signed and acknowledged GERMAN AMERICAN CAPITAL CORPORATION, as
in the presence of holder of the Alliance Companion Loan
/s/ STEPHEN CHOE By: /s/ GREGORY B. HARTCH
------------------------------------ ------------------------------------
Print Name: Stephen Choe Name: Gregory B. Hartch
---------------------------------
/s/ ELIZABETH GOSSELIN Title: Authorized Signatory
------------------------------------ --------------------------------
Print Name: Elizabeth Gosselin
/s/ STEPHEN CHOE By: /s/ JAMES M. FITZPATRICK
------------------------------------ ------------------------------------
Print Name: Stephen Choe Name: James M. Fitzpatrick
---------------------------------
/s/ ELIZABETH GOSSELIN Title: Vice President - GACC
------------------------------------ --------------------------------
Print Name: Elizabeth Gosselin
Signed and acknowledged L-O BROADWAY INVESTMENTS, INC.,
in the presence of as holder of the Crown Plaza Companion
Loan
/s/ NANCY CHAN By: /s/ RONALD E. SILVA
------------------------------------ ------------------------------------
Print Name: Nancy Chan Name: Ronald E. Silva
---------------------------------
/s/ NANCY CHAN Title: Executive Vice President
------------------------------------ --------------------------------
Print Name: Nancy Chan
Signed and acknowledged GERMAN AMERICAN CAPITAL CORPORATION, as
in the presence of holder of the Crystal Park Companion
Loan
/s/ STEPHEN CHOE By: /s/ GREGORY B. HARTCH
------------------------------------ ------------------------------------
Print Name: Stephen Choe Name: Gregory B. Hartch
---------------------------------
/s/ ELIZABETH GOSSELIN Title: Authorized Signatory
------------------------------------ --------------------------------
Print Name: Elizabeth Gosselin
/s/ STEPHEN CHOE By: /s/ JAMES M. FITZPATRICK
------------------------------------ ------------------------------------
Print Name: Stephen Choe Name: James M. Fitzpatrick
---------------------------------
/s/ ELIZABETH GOSSELIN Title: Vice President - GACC
------------------------------------ --------------------------------
Print Name: Elizabeth Gosselin
<PAGE>
STATE OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On this 20th day of September, 2000, before me, the undersigned,
a Notary Public in and for the State of Massachusetts, duly commissioned and
sworn, personally appeared R. Douglas Donaldson, to me known who, by me duly
sworn, did depose and acknowledge before me and say that s/he resides at One
International Place, Boston, Maryland; that s/he is the Treasurer of DEUTSCHE
MORTGAGE & ASSET RECEIVING CORPORATION, a Delaware corporation, the corporation
described in and that executed the foregoing instrument; and that s/he signed
her/his name thereto under authority of the board of directors of said
corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first
above written.
/s/ ERIN MARY O'MALLEY
--------------------------------------
NOTARY PUBLIC in and for the
State of MA
My Commission expires: 8/27/2004
(stamp)
(seal)
ERIN MARY O'MALLEY
Notary Public
My Commission Expires August 27, 2004
This instrument prepared by:
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On this 19th day of September, 2000, before me, the undersigned,
a Notary Public in and for the State of Texas, duly commissioned and sworn,
personally appeared Edgar L. Smith II, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he resides at 1717 Main Street,
Dallas, Texas 75021; that he is the Chief Operating Officer of ORIX REAL ESTATE
CAPITAL MARKETS, LLC, the company described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of said company
and on behalf of such company.
WITNESS my hand and seal hereto affixed the day and year first
above written.
/s/ SANDRA ANDERSON
--------------------------------------
NOTARY PUBLIC in and for the
State of Texas
My Commission expires: 10/14/2000
(stamp)
(seal)
SANDRA ANDERSON
NOTARY PUBLIC
THE STATE OF TEXAS
COMMISSION EXPIRES
10-14-2000
This instrument prepared by:
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On this 20th day of September, 2000, before me, Jennifer Jourdan, a Notary
Public in and for said State, personally appeared Alyssa C. Stahl, known to me
to be an Assistant Vice President of LASALLE BANK NATIONAL ASSOCIATION, one of
the corporations that executed the within instument, and also known to me to be
the person who executed it on behalf of said coproration, and acknowledged to me
that such coproration 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.
"OFFICIAL SEAL" /s/ JENNIFER JOURDAN
JENNIFER JOURDAN --------------------------------------
NOTARY PUBLIC STATE OF ILLINOIS Jennifer Jourdan, Notary Public
My Commission Expires 05/19/2004
My Commission expires: 5/19/04
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 20th day of September, 2000, before me, the undersigned,
a Notary Public in and for the State of New York, duly commissioned and sworn,
personally appeared Leslie A. Gaskill, to me known who, by me duly sworn, did
depose and acknowledge before me and say that s/he resides at 16 Bungalow Ave.,
Oceanport, NJ; that s/he is a Vice President of WELLS FARGO BANK MINNESOTA,
N.A., a nationally chartered bank, the entity described in and that executed the
foregoing instrument; and that he/her signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first
above written.
/s/ JACK A. AINI
--------------------------------------
NOTARY PUBLIC in and for the
State of _____________.
My Commission expires:
(stamp)
(seal)
JACK A. AINI
Notary Public, State of New York
No. 02A1507924
Qualified in Kings County
Commission Expires June 9, 2001
This instrument prepared by:
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 19th day of September, 2000, before me, the undersigned,
a Notary Public in and for the State of New York, duly commissioned and sworn,
personally appeared Gregory B. Hartch, to me known who, by me duly sworn, did
depose and acknowledge before me and say that s/he resides at 31 W. 52nd St.,
NY, NY 10019; that s/he is a Authorized Signatory of GERMAN AMERICAN CAPITAL
CORPORATION, a Maryland corporation, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first
above written.
/s/ KAREN D. BERNSOHN
--------------------------------------
NOTARY PUBLIC in and for the
State of New York
My Commission expires:
(stamp)
(seal)
KAREN D. BERNSOHN
Notary Public, State of New York
No. 01BE6008838
Qualified in New York County
Commission Expires June 15, 2002
This instrument prepared by:
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF CALIFORNIA )
) ss:
COUNTY OF SAN FRANCISCO )
On this 18th day of September, 2000, before me, the undersigned,
a Notary Public in and for the State of California, duly commissioned and sworn,
personally appeared Ronald E. Silva, to me known who, by me duly sworn, did
depose and acknowledge before me and say that s/he resides at 140 Pacific
Avenue, San Francisco, CA 94111; that s/he is a Executive Vice President of L-O
Broadway Investments, Inc., a Delaware corporation, the corporation described in
and that executed the foregoing instrument; and that s/he signed her/his name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first
above written.
/s/ NANCY CHAN
--------------------------------------
NOTARY PUBLIC in and for the
State of California
My Commission expires: Oct. 10, 2000
(stamp)
(seal)
NANCY CHAN
Comm.# 1113445
NOTARY PUBLIC - CALIFORNIA
City & County of San Francisco
My Comm. Expires Oct. 10, 2000
This instrument prepared by:
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-1
Class A-1 Pass-Through Rate: 7.206% CUSIP: 20046PAA6
ISIN: US20046PAA66
Common Code: 011823955
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class A-1 Certificates: $148,498,000 this Certificate: $148,498,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: A-1-1
September 15, 2008
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-2, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class A-1 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-l Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-1 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class A-1
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-l Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-2
Class A-2 Pass-Through Rate: The lesser CUSIP: 20046PAB4
of 7.416% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAB40
the Pooling and Servicing Agreement)
Common Code: 011823963
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-2 Certificates: $542,915,000 this Certificate: $400,000,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: A-2-1
April 15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class A-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-2 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such Class and if no such Holder exercises such
option, the Servicer, may effect an early termination of the Trust Fund, upon
not less than 30 days' prior Notice of Termination given to the Trustee, the
Bond Administrator and Servicer any time on or after the Early Termination
Notice Date (defined as any date as of which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 1.0% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date specifying the
Anticipated Termination Date), by purchasing on such date all, but not less than
all, of the Mortgage Loans then included in the Trust Fund, and all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in cash,
equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class A-2
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
FORM OF CLASS A-2 CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-2
Class A-2 Pass-Through Rate: The lesser CUSIP: 20046PAB4
of 7.416% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAB40
the Pooling and Servicing Agreement)
Common Code: 011823963
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-2 Certificates: $542,915,000 this Certificate: $142,915,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: A-2-2
April 15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class A-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-2 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Bond Administrator with the consent of (x)
the Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such Class and if no such Holder exercises such
option, the Servicer, may effect an early termination of the Trust Fund, upon
not less than 30 days' prior Notice of Termination given to the Trustee, the
Bond Administrator and Servicer any time on or after the Early Termination
Notice Date (defined as any date as of which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 1.0% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date specifying the
Anticipated Termination Date), by purchasing on such date all, but not less than
all, of the Mortgage Loans then included in the Trust Fund, and all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in cash,
equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class A-2
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-3
FORM OF CLASS X CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL BALANCE OF
THE CLASS X CERTIFICATES IS EQUAL TO THE AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE
OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. 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 AND CERTAIN OTHER ASSETS.
<PAGE>
COMM 2000 C-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS X
Class X Pass-Through Rate: Variable, as CUSIP: 20046PAG3
determined in accordance with the Pooling
and Servicing Agreement. ISIN: US20046PAG37
Common Code: 011824200
Original Aggregate Notional Balance of the Initial Notional Balance of this
Class X Certificates: $897,940,215 Certificate: $400,000,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: X-1
January 15, 2024
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R and Class LR Certificates
(together with the X Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class X Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class X Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement
and the Bond Administrator.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class X
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class X
Schedule A
Remaining Notional
Notional Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS X CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL BALANCE OF
THE CLASS X CERTIFICATES IS EQUAL TO THE AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE
OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000 C-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS X
Class X Pass-Through Rate: Variable, as CUSIP: U20196AA6
determined in accordance with the Pooling
and Servicing Agreement. ISIN: USU20196AA60
Common Code: 011824196
Original Aggregate Notional Balance of the Initial Notional Balance of this
Class X Certificates: $897,940,215 Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: X-1
January 15, 2024
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R and Class LR Certificates
(together with the X Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class X Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class X Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement
and the Bond Administrator.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class X
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class X
Schedule A
Remaining Notional
Notional Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS X CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL BALANCE OF
THE CLASS X CERTIFICATES IS EQUAL TO THE AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE
OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. 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 AND CERTAIN OTHER ASSETS.
<PAGE>
COMM 2000 C-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS X
Class X Pass-Through Rate: Variable, as CUSIP: 20046PAG3
determined in accordance with the Pooling
and Servicing Agreement. ISIN: US20046PAG37
Common Code: 011824200
Original Aggregate Notional Balance of the Initial Notional Balance of this
Class X Certificates: $897,940,215 Certificate: $400,000,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: X-2
January 15, 2024
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R and Class LR Certificates
(together with the X Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class X Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class X Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement
and the Bond Administrator.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class X
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class X
Schedule A
Remaining Notional
Notional Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS X CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL BALANCE OF
THE CLASS X CERTIFICATES IS EQUAL TO THE AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE
OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. 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 AND CERTAIN OTHER ASSETS.
<PAGE>
COMM 2000 C-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS X
Class X Pass-Through Rate: Variable, as CUSIP: 20046PAG3
determined in accordance with the Pooling
and Servicing Agreement. ISIN: US20046PAG37
Common Code: 011824200
Original Aggregate Notional Balance of the Initial Notional Balance of this
Class X Certificates: $897,940,215 Certificate: $97,940,215
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: X-3
January 15, 2024
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R and Class LR Certificates
(together with the X Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class X Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class X Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement
and the Bond Administrator.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class X
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class X
Schedule A
Remaining Notional
Notional Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS B CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS B
Class B Pass-Through Rate: The lesser of CUSIP: 20046PAC2
7.494% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAC23
the Pooling and Servicing Agreement)
Common Code: 011823971
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class B Certificates: $38,162,000 this Certificate: $38,162,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: B-1
April 15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class B Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class B Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-l Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class B Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class B
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS C
Class C Pass-Through Rate: The lesser of CUSIP: 20046PAD0
7.706% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAD06
the Pooling and Servicing Agreement)
Common Code: 011824030
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class C Certificates: $39,284,000 this Certificate: $39,284,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: C-1
June 15, 2008
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class C Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class C Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-l Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class C Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class C
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class C Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS D CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS D
Class D Pass-Through Rate: The lesser of CUSIP: 20046PAE8
7.804% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAE88
the Pooling and Servicing Agreement)
Common Code: 011824056
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class D Certificates: $13,469,000 this Certificate: $13,469,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: D-1
June 15, 2008
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class D Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-l Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class D Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class D
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class D Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS E CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. 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, AND CERTAIN OTHER ASSETS.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS E
Class E Pass-Through Rate: The lesser of CUSIP: 20046PAF5
8.132% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAF53
the Pooling and Servicing Agreement)
Common Code: 011824072
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class E Certificates: $25,815,000 this Certificate: $25,815,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: E-1
June 15, 2008
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class E Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-1, Class Q-2, Class R, and Class LR Certificates
(together with the Class E Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-l Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class E Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions, in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class E
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class E Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS F
Class F Pass-Through Rate: The Weighted CUSIP: 20046PAH1
Average Net Mortgage Pass-Through Rate
(as defined in the Pooling and Servicing ISIN: US20046PAH10
Agreement)
Common Code: 011824307
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class F Certificates: $11,224,000 this Certificate: $11,224,000
First Distribution Date: October 16, 2000 Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: June No.: F-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class F Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class F Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class F Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class F Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class F
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class F Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class F
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS F CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS F
Class F Pass-Through Rate: The Weighted CUSIP: U20196AB4
Average Net Mortgage Pass-Through Rate
(as defined in the Pooling and Servicing ISIN: USU20196AB44
Agreement)
Common Code: 011824242
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class F Certificates: $11,224,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: June No.: F-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class F Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class F Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class F Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class F Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class F
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class F Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class F
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS G
Class G Pass-Through Rate: The lesser of CUSIP: 20046PAJ7
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAJ75
the Pooling and Servicing Agreement)
Common Code: 011824358
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class G Certificates: $26,938,000 this Certificate: $26,938,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: G-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class G Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class G Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class G Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class G Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class G
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class G Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class G
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS G CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS G
Class G Pass-Through Rate: The lesser of CUSIP: U20196AC2
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AC27
the Pooling and Servicing Agreement)
Common Code: 011824331
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class G Certificates: $26,938,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: G-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class G Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class G Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class G Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class G Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class G
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class G Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class G
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS H
Class H Pass-Through Rate: The lesser of CUSIP: 20046PAK4
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAK49
the Pooling and Servicing Agreement)
Common Code: 0118224374
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class H Certificates: $6,734,000 this Certificate: $6,734,000
First Distribution Date: October 10, 2000 Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: H-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class H Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class H Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class H Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class H Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class H
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class H Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class H
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS H CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS H
Class H Pass-Through Rate: The lesser of CUSIP: U20196AD0
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AD00
the Pooling and Servicing Agreement)
Common Code: 011824366
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class H Certificates: $6,734,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: H-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class H Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class J, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class H Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class H Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class H Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class H
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class H Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class H
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS J
Class J Pass-Through Rate: The lesser of CUSIP: 20046PAL2
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAL22
the Pooling and Servicing Agreement)
Common Code: 011824455
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class J Certificates: $6,734,000 this Certificate: $6,734,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: J-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class J Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class J Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class J Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class J Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class J
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class J Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class J
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS J CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS J
Class J Pass-Through Rate: The lesser of CUSIP: U20196AE8
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AE82
the Pooling and Servicing Agreement)
Common Code: 011824404
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class J Certificates: $6,734,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: J-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class J Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class K, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class J Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class J Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class J Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class J
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class J Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class J
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS K
Class K Pass-Through Rate: The lesser of CUSIP: 20046PAM0
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAM05
the Pooling and Servicing Agreement)
Common Code: 011824498
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class K Certificates: $10,101,000 this Certificate: $10,101,000
First Distribution Date: October 16, 2000 Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: K-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class K Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class K Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class K Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class K Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class K
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class K Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class K
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS K CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS K
Class K Pass-Through Rate: The lesser of CUSIP: U20196AF5
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AF57
the Pooling and Servicing Agreement)
Common Code: 011824480
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class K Certificates: $10,101,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: K-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class K Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class L, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class K Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class K Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class K Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class K
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class K Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class K
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-13
FORM OF CLASS L CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS L CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS L
Class L Pass-Through Rate: The lesser of CUSIP: 20046PAN8
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAN87
the Pooling and Servicing Agreement)
Common Code: 011824510
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class L Certificates: $7,856,000 this Certificate: $7,856,000
First Distribution Date: October 16, 2000 Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: L-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class L Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class L Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class L Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class L Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class L
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class L Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class L
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS L CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS L CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS L
Class L Pass-Through Rate: The lesser of CUSIP: U20196AG3
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AG31
the Pooling and Servicing Agreement)
Common Code: 011824501
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class L Certificates: $7,856,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: July No.: L-1
15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class L Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class M,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class L Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class L Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class L Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class L
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class L Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class L
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-14
FORM OF CLASS M CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS M CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS M
Class M Pass-Through Rate: The lesser of CUSIP: 20046PAP3
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAP36
the Pooling and Servicing Agreement)
Common Code: 011824544
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class M Certificates: $6,734,000 this Certificate: $6,734,000
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: M-1
August 15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class M Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class M Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class M Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class M
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class M Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class M
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS M CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS M CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS M
Class M Pass-Through Rate: The lesser of CUSIP: U20196AH1
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AH14
the Pooling and Servicing Agreement)
Common Code: 011824528
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class M Certificates: $6,734,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: M-1
August 15, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class N, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class M Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class M Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class M Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class M
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class M Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class M
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-15
FORM OF CLASS N CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS N CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS N
Class N Pass-Through Rate: The lesser of CUSIP: 20046PAQ1
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAQ19
the Pooling and Servicing Agreement)
Common Code: 011824633
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class N Certificates: $4,489,000 this Certificate: $4,489,000
First Distribution Date: October 16, 2000 Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: May No.: N-1
15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class N Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class N Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class N Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class N Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class N
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class N Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class N
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS N CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS N CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS N
Class N Pass-Through Rate: The lesser of CUSIP: U20196AJ7
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AJ79
the Pooling and Servicing Agreement)
Common Code: 011824595
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class N Certificates: $4,489,000 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: May No.: N-1
15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class N Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class O, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class N Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class N Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class N Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class N
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class N Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class N
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-16
FORM OF CLASS O CERTIFICATE
RULE 144A GLOBAL CERTIFICATE
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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS O CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH 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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. 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 CODE, AND CERTAIN
OTHER ASSETS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS O
Class O Pass-Through Rate: The lesser of CUSIP: 20046PAR9
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: US20046PAR91
the Pooling and Servicing Agreement)
Common Code: 011824722
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class O Certificates: $8,987,215 this Certificate: $8,987,215
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: O-1
January 15, 2024
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class O Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class O Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class O Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class O Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class O
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class O Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class O
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
FORM OF CLASS O CERTIFICATE
REGULATION S GLOBAL CERTIFICATE
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.
GENERALLY, ANY HOLDER OF A CERTIFICATE MAY OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH CERTIFICATE ONLY (A) (1) TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (3) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (4) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS O CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS O
Class O Pass-Through Rate: The lesser of CUSIP: U20196AK4
6.85% or the Weighted Average Net
Mortgage Pass-Through Rate (as defined in ISIN: USU20196AK43
the Pooling and Servicing Agreement)
Common Code: 011824684
Original Aggregate Certificate Balance of Initial Certificate Balance of
Class O Certificates: $8,987,215 this Certificate: $0
First Distribution Date: Cut-off Date: September 1, 2000
Scheduled Final Distribution Date: No.: O-1
January 15, 2024
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class O Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial and multifamily residential properties and held in trust by
the Trustee and serviced by the Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class Q-l, Class Q-2, Class R and Class LR Certificates
(together with the Class O Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle National Association, as Bond Administrator, among other parties. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class O Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class O Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period other than the Interest Accrual Period with respect to
the Distribution Date occurring on October 15, 2000 is assumed to consist of 30
days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which
such Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day; provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class O
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class O Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
Class O
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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<PAGE>
EXHIBIT A-17
FORM OF CLASS Q-1 CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMM 2000 C-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS Q-1
No.: Q-1-1 Percentage Interest: 100%
This certifies that [___________________] is the registered owner of
the Percentage Interest evidenced by this Certificate in the Trust Fund. The
Class Q-1 Certificateholder is not entitled to interest or principal
distributions. The Class Q-1 Certificateholder will be entitled to receive
distributions of Net Default Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial and multifamily residential properties and
held in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class Q-2, Class R and Class LR Certificates
(together with the Class Q-l Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as bond administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive a pro rata
undivided beneficial interest in the portion of the Trust Fund consisting of the
Default Interest collected on the German American Capital Corporation, Morgan
Guaranty Trust Company of New York and LaSalle Bank National Association
Mortgage Loans, subject to the obligation to reimburse the Servicer or the
Trustee, as applicable, for interest on Advances.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-1 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which the
related Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class Q-1
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class Q-1 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-18
FORM OF CLASS Q-2 CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS Q-2
No.: Q-2-1 Percentage Interest: 50%
This certifies that GERMAN AMERICAN CAPITAL CORPORATION is the
registered owner of the Percentage Interest evidenced by this Certificate in the
Trust Fund. The Class Q-2 Certificateholder is not entitled to interest or
principal distributions. The Class Q-2 Certificateholder will be entitled to
receive distributions of Net Default Interest received from the borrowers. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial and multifamily residential
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class Q-l, Class
R and Class LR Certificates (together with the Class Q-2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive a pro rata
undivided beneficial interest in the portion of the Trust Fund consisting of the
Default Interest collected on the German American Capital Corporation and Morgan
Guaranty Trust Company of New York and LaSalle Bank National Association
Mortgage Loans, subject to the obligation to reimburse the Servicer or the
Trustee, as applicable, for interest on Advances.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-1 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which the
related Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class Q-2
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class Q-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
FORM OF CLASS Q-2 CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
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"), 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, OR OTHER PLAN 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 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 BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM
ATTACHED TO 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, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE BOND ADMINISTRATOR AND THE CERTIFICATE REGISTRAR, TO THE EFFECT
THAT THE PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL
NOT RESULT IN THE ASSETS OF THE TRUST 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
DEPOSITOR, THE TRUSTEE, THE BOND ADMINISTRATOR OR THE CERTIFICATE REGISTRAR TO
ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
"GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) 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 BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION
4975 OF THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY
SIMILAR EXEMPTION UNDER SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS Q-2
No.: Q-2-2 Percentage Interest: 50%
This certifies that [_________________________] is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class Q-2 Certificateholder is not entitled to interest or principal
distributions. The Class Q-2 Certificateholder will be entitled to receive
distributions of Net Default Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial and multifamily residential properties and
held in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class Q-l, Class R and Class LR Certificates
(together with the Class Q-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive a pro rata
undivided beneficial interest in the portion of the Trust Fund consisting of the
Default Interest collected on the German American Capital Corporation and Morgan
Guaranty Trust Company of New York and LaSalle Bank National Association
Mortgage Loans, subject to the obligation to reimburse the Servicer or the
Trustee, as applicable, for interest on Advances.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Bond Administrator, or the Paying Agent on behalf of the Bond Administrator,
will distribute (other than the final distribution on any Certificate), on the
fifteenth day of each month, or if such day is not a Business Day, the Business
Day immediately following such day, commencing in October, 2000 (each such date,
a "Distribution Date") an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-1 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month in which the
related Distribution Date occurs or, if such day is not a Business Day, the
preceding Business Day provided, however, that with respect to the Distribution
Date occurring in October 2000, the Record Date will be the Closing Date, except
as specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class Q-2
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class Q-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT A-19
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(A)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(L) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE BOND ADMINISTRATOR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND THE LOAN
REMICS AND TO THE APPOINTMENT OF THE BOND ADMINISTRATOR AS ATTORNEY-IN-FACT AND
AGENT FOR THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND
SERVICING AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR
PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
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 A GOVERNMENTAL PLAN, AS DEFINED IN
SECTION 3(32) OF ERISA, OR OTHER PLAN 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 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. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND
SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS R
No.: R-1 Percentage Interest: 100%
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class R Certificateholder is not entitled to interest or principal
distributions. The Class R Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Upper-Tier REMIC, if any, on the Final
Scheduled Distribution Date for the Certificates, after distributions in respect
of any accrued but unpaid interest on the Certificates and after distributions
in reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens and a second lien on commercial properties and held
in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class Q-1, Class Q-2 and Class LR Certificates
(together with the Class R Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month in which the related
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day provided, however, that with respect to the Distribution Date
occurring in October 2000, the Record Date will be the Closing Date, except as
specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01(c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Bond Administrator has caused this Class R
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class R Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
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EXHIBIT A-20
FORM OF CLASS LR CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE BOND ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(A)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(L) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE BOND ADMINISTRATOR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(C), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC, THE
FAIRGROUNDS SQUARE LOAN REMIC AND THE TOWNE SQUARE APARTMENTS LOAN REMIC AND THE
LOAN REMICS AND TO THE APPOINTMENT OF THE BOND ADMINISTRATOR AS ATTORNEY-IN-FACT
AND AGENT FOR THE TAX MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND
SERVICING AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR
PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
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 A GOVERNMENTAL PLAN, AS DEFINED IN
SECTION 3(32) OF ERISA, OR OTHER PLAN 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 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. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND
SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE BOND
ADMINISTRATOR, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY
RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN
ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
COMM 2000-C1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS LR
No.: LR-1 Percentage Interest: 100%
This certifies that [___________________] is the registered owner of
the Percentage Interest evidenced by this Certificate in the Trust Fund. The
Class LR Certificateholder is not entitled to interest or principal
distributions. The Trust Fund, described more fully below, consists primarily of
a pool of Mortgage Loans secured by first liens and a second lien on commercial
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class Q-l, Class
Q-2 and Class R Certificates (together with the Class LR Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Deutsche Mortgage & Asset
Receiving Corporation, as Depositor, Orix Real Estate Capital Markets, LLC, as
Servicer and as Special Servicer, Wells Fargo Bank Minnesota N.A., as Trustee
and LaSalle Bank National Association, as Bond Administrator, among other
parties. To the extent not defined herein, capitalized terms used herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in three "real
estate mortgage investment conduits," as those terms are defined, respectively,
in Sections 860G(a)(2) and 860D of the Code.
Neither the Trustee nor the Bond Administrator makes any
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans and the Bond
Administrator has executed this Certificate in its limited capacity as Bond
Administrator under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the month in which the related
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in October 2000, the Record Date will be the Closing Date, except as
specified in the Pooling and Servicing Agreement. Such distributions shall be
made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Bond Administrator or its
agent (which may be the Paying Agent or the Certificate Registrar acting as such
agent) specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Bond Administrator shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Bond Administrator may,
directly or through an agent, take appropriate steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting such Certificateholders
shall be paid out of the assets which remain held. If within two years after the
second notice any Certificates shall not have been surrendered for cancellation,
the Paying Agent shall pay to the Bond Administrator all amounts distributable
to the Holders thereof, and the Bond Administrator shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Bond Administrator under the Pooling and Servicing Agreement and the transfer
of such amounts to a successor Bond Administrator and (ii) the termination of
the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Bond Administrator may be invested under certain circumstances, and subject to
certain conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) the
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement and any proceeds thereof (to the extent
of the Trust Fund's interest therein); (vi) any Assignments of Leases, Rents and
Profits and any security agreements (to the extent of the Trust Fund's interest
therein); (vii) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein); (viii)
all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers or of the related Companion Holder),
amounts on deposit in the Collection Account attributable to the Mortgage Loans
and the Loan REMIC Interests as identified on the Trust Ledger, the Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account (to the extent of the Trust
Fund's interest therein), the Excess Liquidation Proceeds Account (to the extent
of the Trust Fund's interest therein), the Interest Reserve Account and the
Default Interest Distribution Account (to the extent of the Trust Fund's
interest therein), including any reinvestment income as applicable; (ix) any
environmental indemnity agreements relating to the Mortgaged Properties; (x) the
rights and remedies under the Mortgage Loan Purchase Agreements, including the
Wilton Prepayment Premium Obligation; (xi) each Loan REMIC Regular Interest and
Loan REMIC Residual Interest; and (xii) the proceeds of the foregoing (other
than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee and the Bond Administrator.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Bond Administrator shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Bond Administrator, the Certificate Registrar, any Paying Agent and any agent of
any of them may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond Administrator, the Certificate
Registrar, any Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator, without the consent of any of
the Certificateholders or any Companion Holder, (i) to cure any ambiguity, (ii)
to correct or supplement any provisions herein or therein that may be defective
or inconsistent with any other provisions in such agreements, (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Regular Certificates by each Rating Agency (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), (iv) to amend or
supplement any provisions in such agreements (provided that such amendment shall
not adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto), as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement (provided, such amendment shall not adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto) and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee and the Bond Administrator with the consent of (x) the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment and (y) each Companion Holder affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Certificateholders or Companion Holders; provided, however,
that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans or Companion Loans which
are required to be distributed to any Companion Holder or on
any Certificate without the consent of the related Companion
Holder or Holders of Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates or the voting rights of Companion Holders which
are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby or each
Companion Holder;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement or the obligations of the Servicer or the
Trustee to make a P&I Advance or the Servicer, the Special
Servicer or the Trustee to make a Property Advance, in each
case, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby and the Companion Holders (except
with respect to a P&I Advance); or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of all the Holders of
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby or the consent of the
Companion Holder of each Companion Loan affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Bond Administrator, at any time and from time to time, without
the consent of the Certificateholders or any Companion Holder, may amend the
Pooling and Servicing Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMICs as REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder or any Companion Holder.
Any Holder of the Controlling Class representing greater than a 50%
Percentage Interest in such Class and if no such Holder exercises such option,
the Servicer, may effect an early termination of the Trust Fund, upon not less
than 30 days' prior Notice of Termination given to the Trustee, the Bond
Administrator and Servicer any time on or after the Early Termination Notice
Date (defined as any date as of which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date specifying the Anticipated
Termination Date), by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of the date not
more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this
purpose any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the extent
applicable) to the last day of the month preceding
such Distribution Date (less any P&I Advances
previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the
Mortgage Rate.
Any portion of such purchase price attributable to a Mortgage Loan included in a
Loan REMIC shall be distributed in respect of the related Loan REMIC Regular
Interest and to the Holders of the Class LR Certificates in respect of the
related Loan REMIC Residual Interest in complete liquidation of such Loan REMIC.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee and the Bond
Administrator shall be entitled to rely conclusively on any determination made
by an Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Servicer or the Holder of the Controlling Class representing greater than
a 50% Percentage Interest in such class as described in Section 9.01 (c) of the
Pooling and Servicing Agreement; and (ii) the later of (a) the receipt or
collection of the last payment due on any Mortgage Loan included in the Trust
Fund, or (b) the liquidation and disposition pursuant to the Pooling and
Servicing Agreement of the last asset held by the Trust Fund; provided, however,
that in no event will the trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the United Kingdom, living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Bond Administrator has caused this Class LR
Certificate to be duly executed.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION,
N.A., not in its individual capacity
but solely as Bond Administrator
By:____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class LR Certificates referred to in the Pooling
and Servicing Agreement.
Dated: September 20, 2000
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
<TABLE>
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
<CAPTION>
PSA # LOAN NUMBER PROPERTY NAME ADDRESS
----- ----------- ------------- -------
<S> <C> <C> <C>
1 GA11382 Crowne Plaza Manhattan 1605 Broadway
------------------------------------------------------------------------------------------------------------------------------------
2 GA0001 Alliance TP Portfolio
2A GA0001-F Scenictree Apartments 10205 S. 86th Terrace
2B GA0001-H Woodsfield Apartments 100 Buckhead Drive
2C GA0001-A Appletree Apartments 2911 Bynan Drive
2D GA0001-E Peachtree Apartments 37600 Little Mack
2E GA0001-C Clovertree Apartments 3270 Clovertree
2F GA0001-B Arrowtree Apartments 4568 Blackstone Trail
2G GA0001-D Goldentree Apartments 4795 East Milham Avenue
2H GA0001-G Sugartree Apartments 9070 North Saginaw
------------------------------------------------------------------------------------------------------------------------------------
3 GA6335 Crystal Park One 2011 Crystal Drive
4 400 Radisson Mart Plaza Hotel 711 NW 72nd AV
5 DBM12536 Hampton Village Center Auburn Road & Rochester Road
6 1 DETROIT MAC 11701 Metro Airport Centr Dr.
7 TA9389 105 East 17th Street 105 East 17th Street
------------------------------------------------------------------------------------------------------------------------------------
8 1001 Douglas Development Portfolio
8A 1002 6010 Executive Boulevard 6010 Executive Boulevard
8B 1003 Shops of Chevy Chase 6831 Wisconsin Avenue
8C 1004 614 - 618 King Street 614 - 618 King Street and 110 South Washington St.
------------------------------------------------------------------------------------------------------------------------------------
9 TA4926 Village Hillcrest 3955-3975 5th Ave. & 501 & 555Washington St.
10 TA8380 Fairgrounds Square Mall 3050 North 5th Street Highway
11 428 Embassy Suites - Marlborough 123 Boston Post Road West
------------------------------------------------------------------------------------------------------------------------------------
12 2 BLOOMFIELD CENTER 1533 N. Woodward Ave
13 413 Northwoods Marketplace 7620 Rivers Avenue
14 TA3468 Budget Suites of America 3655 West Tropicana Avenue
15 3 ELMHURST TERRACE APARTMENTS 100 Fellows Court
16 GA6402 Saks - Stratford Square 4 Stratford Square Mall
17 TA9754 Emerald Bay Apartments 4701 East Sahara Avenue
18 4 LINCOLN TOWERS 15075 W. Lincoln Rd.
------------------------------------------------------------------------------------------------------------------------------------
19 TA7317 Hudson Valley Centers Portfolio
19A TA7317-A Imperial Plaza 1201 Route 9
19B TA7317-B Mall @59 253 West Route 59
20 5 BRIARBROOK VILLAGE APARTMENTS 1147 Briarbbrook Drive
21 6 PHILLIPS VAN HEUSEN CORP HEADQUARTERS 600 Sabre Oaks Drive
------------------------------------------------------------------------------------------------------------------------------------
22 7 2842 BUSINESS PARK AVE. 2842 Business Park Ave.
23 8 NORTH MORRIS ESTATES 9098 N. Saginaw
------------------------------------------------------------------------------------------------------------------------------------
24 446 Eastgate Station 700 Eastgate South Drive
25 1016 Reservoir Industrial Center 1353&1341 E Philadelphia St, 1395&1350 E Lexington
26 9 DETROIT MII 11101 Metro Airport Ctr. Dr.
27 1017 Barton Industries 900 South Turnbull Canyon Road
------------------------------------------------------------------------------------------------------------------------------------
28 10 CARRIAGE COVE One Carriage Cove Way
29 1019 Scotts Village 227-259 Mt. Hermon Road
30 TA8379 Mountaineer Mall 5000 Greenbag Road
31 403 Dixie Valley Shopping Center 10383 Dixie Highway
32 12 BLUECROSS - ROCKFORD 2787 MacFarland Rd.
33 14 5001 JOERNS ROAD 5001 Joerns Road
34 1022 Homebase - Norco 200 Hidden Valley Parkway
35 1028 American Mini Storage 25801 Victoria Boulevard
36 16 THE MEADOWS 2555 PGA Blvd.
------------------------------------------------------------------------------------------------------------------------------------
37 DBM10224 Denton Square Shopping Center 717 South Interstate 35E
38 410 Galleria L'Orange 130 W. Chapman Avenue & 146 S. Main Street
39 TA9207 Haros Portfolio III
39A TA9207-A 3215 Holland Avenue 3215 Holland Avenue
39B TA9207-B 47-07 39th Street 47-07 39th Street
39C TA9207-C 1576 Taylor Street 1576 Taylor Avenue
40 17 CASA CORDOBA 1303 Ocala Road
41 TA2776 Wilton Office Plaza 372 Danbury Road
42 18 TAYLOR PARK 11205 Elm
------------------------------------------------------------------------------------------------------------------------------------
43 427 Embassy Suites - Corpus Christi 4337 S. Padre Island Drive
44 1032 Pico Pavilion 415 Avenida Pico
45 TA9167 Mebane Oaks Market Place 1008 - 1030 Mebane Oaks Road
46 423 Windsor Corporate Park 2555 & 2605 Lord Baltimore Drive
------------------------------------------------------------------------------------------------------------------------------------
47 1036 Palo Verde Square 11005 North Frank Lloyd Wright Boulevard
48 1035 Homewood Garden Apartments 14040 Foothill Boulevard
49 TA9515 Bancroft Building 50 Franklin Street
50 DBM10210 6350 Court Street Road 6350 Court Street Road
51 DBM5840 Towne Square Apartments 14700-14740 Roscoe Blvd
52 DBM12718 Mark IV Apartments 11387 Gould Road
53 19 300 FIRST AVENUE NORTH OFFICE BUILDING 300 First Avenue North
54 20 Talon 35105 Cricklewood Ave.
55 21 BLUECROSS - JACKSONVILLE 1125 Wall Street
56 425 Lancaster Square 1816-1824 Lancaster St.
57 DBM11252 Memory Lanes MHC 25039 West US 12
------------------------------------------------------------------------------------------------------------------------------------
58 1047 Sunshine Mobile Manor 5000 Southeast Federal Highway
59 22 PLAZA 400 400 South Oyster Bay Road
60 23 HIDDEN GLENN APARTMENTS 290 N. Stadium Dr.
61 24 ELMHURST PLAZA 3800 Elm Road
62 416 Europacific Building 18071 Fitch Avenue
63 DBM10413 Paramount Bank Building 31000 Northwestern Highway
64 26 INDIAN VILLAGE MHC 2600 E. South Street
65 25 SAN DEE OF TAYLOR APARTMENTS 16167 Weddel St.
66 1056 Sunset Mobile Home Park 1130 White Rock Road
67 1057 San Marcos Self Storage 999 East Mission Road
68 DBM11790 Florence Park Apartments 771 Southeast Avenue
69 1058 Woodbridge Village Apartments 7350 Lankershim Boulevard
70 27 PARK HILL 33000 Park Hill Blvd
71 28 WILLOWOOD APARTMENTS 27628 Willowood Dr.
------------------------------------------------------------------------------------------------------------------------------------
72 418 The Strand 3100 Boardwalk
73 1064 Lamplighter MHP 5040 Jackson Street
74 30 UNIVERSITY TOWERS APARTMENTS 415 Chapel Drive
------------------------------------------------------------------------------------------------------------------------------------
75 31 407 PARK AVENUE 407 Park Ave
76 1067 Sunrise MHP 2200 West Wilson Street
77 32 EATON & LAUTH 9777 College Ave
78 1066 Tokay Manor Mobile Home Park 7908 Tokay Avenue
------------------------------------------------------------------------------------------------------------------------------------
79 33 WHITEHALL APARTMENTS 332 S. Kendall Ave
80 DBM10692 Arundel Village Plaza 5501 - 5517 Ritchie Highway
81 DBM11344 Murray Square 521-687 Norht Murray Blvd
------------------------------------------------------------------------------------------------------------------------------------
82 415 Wharton Mall North Main Street & Meadows Ave.
83 439 Mill Centre 2901 & 3000 Chestnut Avenue
84 1072 Stor - All Self Storage 6701 NW 18th Court
85 35 PINES OF LAPEER APARTMENTS 930 Village West Dr.
86 DBM11842 Brea Towers 420-480 W Lambert Road
87 1074 Arrowhead Self Storage 19315 North 83rd Avenue
88 36 ROANOKE APARTMENTS 12635 Memorial Avenue
89 DBM12528 Woodbridge Shopping Center 420 Grapevine Highway
------------------------------------------------------------------------------------------------------------------------------------
90 401 Pines & Scholars Apartment Portfolio
90A 401-B Scholars Apartments 1000 N. Grand Av
90B 401-A Pines Apartments 110 E. Lakeview Rd
------------------------------------------------------------------------------------------------------------------------------------
91 1078 Ruisseau Village Shopping Center 301 West Parker Road
92 37 795 MERRICK AVENUE 795 Merrick Ave.
93 1082 White Lane Apartments 400 White Lane
94 406 137-139 E. 110th St. 137-139 E. 110th St.
95 TA1783 Town & Country Shopping Center 4265 Tamiami Trail
96 1090 Santee Pico Plaza 1300 Santee Street
97 1091 Courtyard Office 95 North Marengo Avenue
98 38 PERRYSBURG ESTATES MHC 23720 Lime City Road
------------------------------------------------------------------------------------------------------------------------------------
99 1093 Terra Ceia Village RV Resort 9303 US Highway 41 North
100 39 1200 BLALOCK OFFICE PARK 1200 Blalock
101 40 HOLLY HILLS PLAZA 6401 - 6411 Gravois Road
102 41 MIDWEST MHC 12817 E. 47th Street
103 1096 Added Space Self Storage 2555 West Main Street
104 442 Nasa Road One Shopping Center 201 Nasa Road One
105 424 Columbus Square Shopping Center 3501 Fowler Street
106 1098 Baymeadows Self Storage 8285 Western Way Circle
107 1099 Lakeview Plaza 2117-2161 West 6th Street
108 DBM12175 Corners at Riverdale 7489 McElroy Drive
------------------------------------------------------------------------------------------------------------------------------------
109 1101 Bryan Cleveland Portfolio
109A 1102 Bryan Court Apartments 309 Bryan Street
109B 1103 Cleveland Court Apartments 1000 Cleveland Street
------------------------------------------------------------------------------------------------------------------------------------
110 1104 Mini Warehouse of Irondale 2824 5th Avenue South
111 1105 El Rancho Mobile Home Park 201 Wyoming SE
112 1108 Fleetwood Mobile Home and RV Park 5001 Phillips Highway
</TABLE>
<PAGE>
<TABLE>
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE (continued)
<CAPTION>
PSA # CITY STATE ZIP RATE ORIGINAL PRINCIPLE BALANCE
----- ---- ----- --- ---- --------------------------
<S> <C> <C> <C> <C> <C>
New York New York 10019 8.473% 92,000,000.00
------------------------------------------------------------------------------------------------------------------------------------
7.320% 61,128,954.40
2A Palos Hills Illinois 60465
2B Fairfield Ohio 45014
2C Ypsilanti Michigan 48197
2D Clinton Township Michigan 48036
2E Flint Michigan 48532
2F Okemos Michigan 48864
2G Portage Michigan 49002
2H Mt. Morris Michigan 48458
------------------------------------------------------------------------------------------------------------------------------------
Arlington Virginia 22202 7.840% 42,286,047.56
Miami Florida 33126 8.710% 32,000,000.00
Rochester Hills Michigan 48307 8.530% 30,000,000.00
Romulus Michigan 48174 7.960% 30,000,000.00
New York New York 10003 8.510% 25,250,000.00
------------------------------------------------------------------------------------------------------------------------------------
7.750% 28,875,000.00
8A Rockville Maryland 20852
8B Bethesda Maryland 20815
8C Alexandria Virginia 22314
------------------------------------------------------------------------------------------------------------------------------------
San Diego California 92103 7.270% 23,200,000.00
Reading Pennsylvania 19605 7.990% 21,800,000.00
Marlborough Massachusetts 01752 8.615% 20,500,000.00
------------------------------------------------------------------------------------------------------------------------------------
Bloomfield Hills Michigan 48304 8.665% 20,400,000.00
North Charleston South Carolina 29406 8.000% 19,000,000.00
Las Vegas Nevada 89103 7.790% 17,615,000.00
Elmhurst Illinois 60126 7.770% 15,380,000.00
Bloomingdale Illinois 60108 7.160% 13,026,000.00
Las Vegas Nevada 89121 8.440% 12,800,000.00
Oak Park Michigan 48237 8.180% 11,920,000.00
------------------------------------------------------------------------------------------------------------------------------------
7.890% 11,700,000.00
19A Wappinger Falls New York 12590
19B Nanuet New York 10954
Wheaton Illinois 60187 8.180% 11,250,000.00
South Portland Maine 04106 8.800% 10,800,000.00
------------------------------------------------------------------------------------------------------------------------------------
Fresno California 93727 8.570% 9,575,000.00
Thetford Township Michigan 48458 8.170% 9,130,000.00
------------------------------------------------------------------------------------------------------------------------------------
Cincinnati Ohio 45245 8.930% 9,100,000.00
Pomona California 91766 8.250% 9,000,000.00
Romulus Michigan 48174 7.960% 8,675,000.00
City of Industry California 91745 8.330% 8,600,000.00
------------------------------------------------------------------------------------------------------------------------------------
Daytona Beach Florida 32119 8.240% 8,320,000.00
Scotts Valley California 95066 8.250% 8,300,000.00
Morgantown West Virginia 26501 7.960% 8,100,000.00
Louisville Kentucky 40272 8.690% 7,500,000.00
Rockford Illinois 61114 8.250% 7,500,000.00
Stevens Point Wisconsin 54481 8.570% 7,266,000.00
Norco California 91760 8.680% 7,250,000.00
Dana Point California 92624 8.350% 6,400,000.00
Palm Beach Gardens Florida 33410 8.360% 6,275,000.00
------------------------------------------------------------------------------------------------------------------------------------
Denton Texas 76205 8.800% 6,183,000.00
Orange California 92868 8.930% 6,130,000.00
8.580% 5,800,000.00
39A Bronx New York 10467
39B Sunnyside New York 11104
39C Bronx New York 10072
Tallahasse Florida 32304 8.240% 5,600,000.00
Wilton Connecticut 06897 7.170% 5,600,000.00
Taylor Michigan 48180 7.790% 5,400,000.00
------------------------------------------------------------------------------------------------------------------------------------
Corpus Christi Texas 78411 8.615% 5,338,000.00
San Clemente California 92672 8.650% 5,325,000.00
Mebane North Carolina 27302 8.380% 5,300,000.00
Baltimore Maryland 21244 8.500% 4,975,000.00
------------------------------------------------------------------------------------------------------------------------------------
Scottsdale Arizona 85259 8.320% 4,800,000.00
Sylmar California 91342 8.160% 4,800,000.00
Worcester Massachusetts 01608 8.560% 4,785,000.00
Dewitt New York 13057 8.920% 4,600,000.00
Panorama City California 91402 6.970% 4,400,000.00
Gulfport Mississippi 39530 8.750% 4,300,000.00
Minneapolis Minnesota 55401 8.880% 4,275,000.00
New Baltimore Michigan 48047 8.270% 4,170,000.00
Jacksonville Illinois 62650 8.250% 4,045,000.00
Baltimore City Maryland 21231 8.360% 4,000,000.00
Sturgis Township Michigan 49091 8.250% 4,000,000.00
------------------------------------------------------------------------------------------------------------------------------------
Stuart Florida 34997 7.940% 3,950,000.00
Hicksville New York 11801 8.670% 3,900,000.00
Bourbonnais Illinois 60914 8.580% 3,900,000.00
Warren Ohio 44483 9.060% 3,700,000.00
Irvine California 92614 8.100% 3,600,000.00
Farmington Hills Michigan 48334 8.400% 3,550,000.00
Jackson Michigan 49201 7.850% 3,500,000.00
Taylor Michigan 48180 7.790% 3,500,000.00
El Dorado Hills California 95762 8.350% 3,400,000.00
San Marcos California 92069 8.950% 3,355,000.00
Vineland New Jersey 08360 8.480% 3,300,000.00
North Hollywood California 91605 8.260% 3,150,000.00
Wayne Michigan 48184 7.790% 3,100,000.00
Harrison Township Michigan 48045 7.950% 3,025,000.00
------------------------------------------------------------------------------------------------------------------------------------
Wildwood New Jersey 08260 9.270% 3,000,000.00
North Highlands California 95660 8.080% 3,000,000.00
Tallahassee Florida 32304 7.800% 2,950,000.00
------------------------------------------------------------------------------------------------------------------------------------
New York New York 10022 8.720% 2,837,000.00
Banning California 92220 8.180% 2,800,000.00
Indianapolis Indiana 46280 8.430% 2,800,000.00
Fontana California 92336 8.230% 2,800,000.00
------------------------------------------------------------------------------------------------------------------------------------
Kalamazoo Michigan 49006 7.790% 2,800,000.00
Brooklyn Park Maryland 21225 9.310% 2,700,000.00
Colorado Springs Colorado 80915 8.830% 2,700,000.00
------------------------------------------------------------------------------------------------------------------------------------
Wharton New Jersey 07885 8.300% 2,600,000.00
Baltimore Maryland 21211 8.450% 2,595,000.00
Plantation Florida 33313 8.290% 2,530,000.00
Lapeer Michigan 48446 7.970% 2,500,000.00
Brea California 92821 8.980% 2,393,000.00
Peoria Arizona 85382 7.910% 2,400,000.00
Detroit Michigan 48227 8.180% 2,362,000.00
Hurst Texas 76054 8.610% 2,300,000.00
------------------------------------------------------------------------------------------------------------------------------------
7.690% 2,300,000.00
90A Tahlequah Oklahoma 74464
90B Stillwater Oklahoma 74075
------------------------------------------------------------------------------------------------------------------------------------
Plano Texas 75023 8.380% 2,250,000.00
Westbury New York 11590 8.720% 2,120,000.00
Bakersfield California 93307 8.100% 2,000,000.00
New York New York 10029 8.020% 1,875,000.00
Port Charlotte Florida 33980 7.490% 1,900,000.00
Los Angeles California 90015 9.270% 1,700,000.00
Pasadena California 91101 9.270% 1,665,000.00
Perrysburg Township Ohio 43551 8.420% 1,650,000.00
------------------------------------------------------------------------------------------------------------------------------------
Palmetto Florida 34221 8.260% 1,610,000.00
Houston Texas 77055 8.140% 1,500,000.00
St. Louis Missouri 63116 8.180% 1,450,000.00
Independence Missouri 64055 8.730% 1,431,000.00
Turlock California 95380 8.410% 1,375,000.00
Webster Texas 77598 9.250% 1,350,000.00
Fort Myers Florida 33901 8.700% 1,300,000.00
Jacksonville Florida 32256 9.080% 1,300,000.00
Los Angeles California 90057 9.270% 1,275,000.00
Riverdale Georgia 30296 8.800% 1,250,000.00
------------------------------------------------------------------------------------------------------------------------------------
8.460% 1,160,000.00
109A Denton Texas 76206
109B Denton Texas 76206
------------------------------------------------------------------------------------------------------------------------------------
Irondale Alabama 35210 8.390% 1,125,000.00
Albuquerque New Mexico 87123 8.750% 1,100,000.00
Jacksonville Florida 32207 8.620% 1,000,000.00
</TABLE>
<PAGE>
<TABLE>
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE (continued)
<CAPTION>
PSA # CUT-OFF PRINCIPLE BALANCE MATURITY DATE ARD DUE DATE SERVICING FEE RATE ACTUAL/360 LOCKBOX
----- ------------------------- ------------- --- -------- ------------------ ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
91,611,396.03 04/01/25 04/01/10 1 0.03270% TRUE Hard
------------------------------------------------------------------------------------------------------------------------------------
59,954,121.32 09/01/28 09/01/08 1 0.03270% TRUE Soft
2A
2B
2C
2D
2E
2F
2G
2H
------------------------------------------------------------------------------------------------------------------------------------
41,970,321.24 10/01/29 10/01/09 1 0.03270% FALSE Hard
31,785,636.55 01/01/10 01/01/10 1 0.03270% TRUE Hard
29,978,011.84 07/01/30 07/01/10 1 0.03270% TRUE Hard
29,810,151.24 10/01/09 10/01/09 1 0.03270% TRUE No
25,139,203.47 12/01/19 12/01/09 1 0.03270% TRUE Hard
------------------------------------------------------------------------------------------------------------------------------------
24,430,501.35 01/01/09 01/01/09 1 0.08270% TRUE No
8A
8B
8C
------------------------------------------------------------------------------------------------------------------------------------
22,774,663.42 08/01/28 08/01/08 1 0.03270% TRUE Springing
21,636,721.58 08/01/09 08/01/09 1 0.03270% TRUE Springing
20,436,033.96 05/10/10 05/10/10 10 0.03270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
20,354,259.37 04/01/10 04/01/10 1 0.06270% TRUE No
18,969,963.65 06/01/30 06/01/10 1 0.03270% TRUE Hard
16,982,556.14 03/01/23 03/01/08 1 0.03270% FALSE No
15,277,614.23 10/01/06 10/01/06 1 0.03270% TRUE No
12,856,199.78 01/01/24 01/01/24 1 0.03270% TRUE Springing
12,764,240.17 03/01/10 03/01/10 1 0.03270% TRUE Springing
11,867,816.69 01/01/10 01/01/10 1 0.07270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
11,580,255.11 04/01/09 04/01/09 1 0.03270% TRUE Springing
19A
19B
11,220,842.67 04/01/10 04/01/10 1 0.03270% TRUE No
10,786,711.02 06/01/10 06/01/10 1 0.03270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
9,549,330.03 03/01/10 03/01/10 1 0.03270% TRUE No
9,106,268.83 04/01/10 04/01/10 1 0.03270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
9,089,284.48 06/01/30 06/01/10 1 0.03270% TRUE Hard
8,957,452.64 12/01/09 12/01/09 1 0.03270% TRUE No
8,620,102.08 10/01/09 10/01/09 1 0.03270% TRUE No
8,481,595.26 06/01/09 06/01/09 1 0.04270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
8,295,275.32 03/01/10 03/01/10 1 0.07270% TRUE No
8,245,776.30 09/01/09 09/01/09 1 0.08270% TRUE No
8,038,842.46 08/01/09 08/01/09 1 0.03270% TRUE Springing
7,494,863.83 07/01/30 07/01/10 1 0.03270% TRUE Springing
7,467,783.10 01/01/10 01/01/10 1 0.03270% TRUE No
7,246,520.33 03/01/10 03/01/10 1 0.03270% TRUE No
7,212,550.01 10/01/09 10/01/09 1 0.03270% TRUE No
6,341,987.24 11/01/09 11/01/09 1 0.03270% TRUE No
6,257,026.66 03/01/10 03/01/10 1 0.07270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
6,160,245.16 01/01/10 01/01/10 1 0.03270% TRUE No
6,120,600.79 06/01/10 06/01/10 1 0.03270% TRUE No
5,784,500.27 03/01/10 03/01/10 1 0.03270% TRUE No
39A
39B
39C
5,573,451.38 12/01/09 12/01/09 1 0.03270% TRUE No
5,491,025.36 07/01/08 07/01/08 1 0.03270% TRUE No
5,364,241.12 10/01/09 10/01/09 1 0.07270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
5,321,343.87 05/10/10 05/10/10 10 0.03270% TRUE No
5,302,577.78 12/01/09 12/01/09 1 0.03270% TRUE No
5,292,532.33 06/01/30 06/01/10 1 0.03270% TRUE Hard
4,971,308.11 07/01/10 07/01/10 1 0.08270% TRUE Springing
------------------------------------------------------------------------------------------------------------------------------------
4,777,753.29 12/01/09 12/01/09 1 0.03270% TRUE No
4,776,728.49 12/01/09 12/01/09 1 0.03270% TRUE No
4,764,308.60 12/01/09 12/01/09 1 0.03270% TRUE No
4,589,014.15 03/01/30 03/01/10 1 0.03270% TRUE Hard
4,313,496.08 08/01/28 08/01/08 1 0.03270% TRUE Springing
4,294,620.24 06/01/30 06/01/10 1 0.03270% TRUE Soft
4,264,650.73 03/01/10 03/01/10 1 0.03270% TRUE No
4,152,184.67 01/01/10 01/01/10 1 0.07270% TRUE No
4,027,624.41 01/01/10 01/01/10 1 0.03270% TRUE No
3,996,858.75 07/01/30 07/01/10 1 0.03270% TRUE Hard
3,992,464.70 05/01/10 05/01/10 1 0.03270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
3,921,979.87 09/01/09 09/01/09 1 0.03270% TRUE No
3,885,098.58 01/01/10 01/01/10 1 0.03270% TRUE No
3,884,712.13 01/01/10 01/01/10 1 0.03270% TRUE No
3,691,580.65 03/01/10 03/01/10 1 0.03270% TRUE No
3,594,475.25 06/01/30 06/01/10 1 0.03270% TRUE Hard
3,548,633.10 08/01/10 08/01/10 1 0.03270% TRUE No
3,494,219.68 06/01/10 10/01/09 1 0.07270% TRUE No
3,476,822.97 10/01/09 10/01/09 1 0.07270% TRUE No
3,380,679.41 10/01/09 10/01/09 1 0.03270% TRUE No
3,333,606.67 01/01/10 01/01/10 1 0.03270% TRUE No
3,297,530.90 07/01/10 07/01/10 1 0.03270% TRUE No
3,136,505.65 01/01/10 01/01/10 1 0.04270% TRUE No
3,079,471.74 10/01/09 10/01/09 1 0.07270% TRUE No
3,007,283.64 11/01/09 11/01/09 1 0.03270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
2,996,867.73 06/01/10 06/01/10 1 0.03270% TRUE No
2,990,645.78 03/01/10 03/01/10 1 0.03270% TRUE No
2,932,035.47 11/01/09 11/01/09 1 0.07270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
2,822,518.20 10/01/09 10/01/09 1 0.03270% TRUE No
2,791,526.73 03/01/10 03/01/10 1 0.03270% TRUE No
2,785,590.43 11/01/09 11/01/09 1 0.07270% TRUE No
2,781,608.59 09/01/09 09/01/09 1 0.03270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
2,781,458.40 10/01/09 10/01/09 1 0.03270% TRUE No
2,697,222.08 06/01/10 06/01/10 1 0.03270% TRUE No
2,696,710.99 06/01/30 06/01/10 1 0.03270% TRUE Hard
------------------------------------------------------------------------------------------------------------------------------------
2,596,244.70 06/01/30 06/01/10 1 0.03270% TRUE Springing
2,594,020.81 08/01/30 08/01/10 1 0.03270% TRUE Springing
2,504,697.95 10/01/09 10/01/09 1 0.03270% TRUE No
2,487,228.29 12/01/09 12/01/09 1 0.03270% TRUE No
2,390,230.21 06/01/10 06/01/10 1 0.03270% TRUE No
2,361,037.07 01/11/09 01/11/09 11 0.06270% TRUE No
2,358,461.26 06/01/10 06/01/10 1 0.03270% TRUE No
2,298,369.90 07/01/10 07/01/10 1 0.03270% TRUE Hard
------------------------------------------------------------------------------------------------------------------------------------
2,279,374.78 06/01/15 06/01/15 1 0.08270% FALSE No
90A
90B
------------------------------------------------------------------------------------------------------------------------------------
2,232,361.03 06/01/09 06/01/09 1 0.03270% TRUE No
2,109,178.15 10/01/09 10/01/09 1 0.03270% TRUE No
1,990,140.72 12/01/09 12/01/09 1 0.03270% TRUE No
1,872,053.32 06/01/10 06/01/10 1 0.03270% TRUE No
1,833,853.18 05/01/23 05/01/08 1 0.03270% FALSE Springing
1,692,911.82 03/01/10 03/01/10 1 0.03270% TRUE No
1,658,057.77 03/01/10 03/01/10 1 0.03270% TRUE No
1,643,235.60 01/01/10 01/01/10 1 0.07270% TRUE No
------------------------------------------------------------------------------------------------------------------------------------
1,599,510.36 09/01/09 09/01/09 1 0.03270% TRUE No
1,490,961.85 10/01/06 10/01/06 1 0.03270% TRUE No
1,447,206.37 05/01/10 05/01/10 1 0.03270% TRUE No
1,426,130.76 02/01/10 02/01/10 1 0.03270% TRUE No
1,361,576.50 10/01/09 10/01/09 1 0.08270% TRUE No
1,347,204.15 06/01/10 06/01/10 1 0.03270% TRUE No
1,298,346.50 06/01/10 06/01/10 1 0.08270% TRUE No
1,285,915.03 07/01/09 07/01/09 1 0.03270% TRUE No
1,269,683.87 03/01/10 03/01/10 1 0.03270% TRUE No
1,249,184.50 07/01/30 07/01/10 1 0.03270% TRUE Hard
------------------------------------------------------------------------------------------------------------------------------------
1,157,231.40 04/01/10 04/01/10 1 0.03270% TRUE No
109A
109B
------------------------------------------------------------------------------------------------------------------------------------
1,107,507.95 04/01/09 04/01/09 1 0.08270% TRUE No
1,077,263.82 07/01/09 07/01/09 1 0.06270% TRUE No
988,841.49 08/01/09 08/01/09 1 0.03270% TRUE No
</TABLE>
<PAGE>
EXHIBIT B-2
COMPANION LOAN SERVICING FEES
COMPANION LOAN NAME COMPANION SERVICING FEE
------------------- -----------------------
Crowne Plaza Companion Loan 0.0225%
--------------------------------------------------------------------------------
Alliance Companion Loan 0.0375%
--------------------------------------------------------------------------------
Crystal Park Companion Loan 0.0375%
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
____________________________________________________, being first duly sworn,
deposes and says:
1. That ____________________________ he/she ____________________________ is a
_______________________________ of ______________________________ (the
"Purchaser"), a ____________________ duly organized and existing under the laws
of the State of ____________________ on behalf of which he/she makes this
affidavit.
2. That the Purchaser's Taxpayer Identification Number is __________________.
3. That the Purchaser of the Commercial Mortgage Pass-Through Certificates,
COMM 2000-C1, Class [R] [LR] (the "Class [R] [LR] Certificate") is a Permitted
Transferee (as defined in Article I of the Pooling and Servicing Agreement dated
as of September 1, 2000 (the "Pooling and Servicing Agreement"), by and among
Deutsche Mortgage & Asset Receiving Corporation, as depositor, Orix Real Estate
Capital Markets, LLC, as servicer, Orix Real Estate Capital Markets, LLC, as
special servicer, Wells Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank
National Association, as bond administrator, and the other parties named
therein, or is acquiring the Class [R] [LR] Certificate for the account of, or
as agent (including as a broker, nominee, or other middleman) for, a Permitted
Transferee and has received from such person or entity an affidavit
substantially in the form of this affidavit.
4. That the Purchaser 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 Purchaser
intends to pay taxes associated with holding the Class [R] [LR] Certificate as
they become due.
5. That the Purchaser 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 Purchaser will not transfer the Class [R] [LR] Certificate to any
person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit or as to which the Purchaser has
actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or
paragraph 7 hereof are not satisfied or that the Purchaser has reason to know
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified
Non-U.S. Person.
8. That the Purchaser 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 such a "disqualified organization," an
agent thereof, or a person that does not satisfy the requirements of paragraph 4
and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with respect
to the [Upper-Tier REMIC] [Lower-Tier REMIC and Loan REMICs], the Purchaser
agrees to act as "tax matters person" and to perform the functions of "tax
matters partner" of the [Upper-Tier REMIC][Lower-Tier REMIC and Loan REMICs]
pursuant to Section 4.04 of the Pooling and Servicing Agreement, and agrees to
the irrevocable designation of the Bond Administrator as the Purchaser's agent
in performing the function of "tax matters person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the provisions of
Section 5.02 of the Pooling and Servicing Agreement concerning registration of
the transfer and exchange of the Class [R] [LR] Certificate.
Capitalized terms used but not defined herein have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf by its this _____ day of ____________________, _____.
[Purchaser]
By:___________________________________
Name:
Title:
<PAGE>
Personally appeared before me the above-named ____________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________________ of the Purchaser, 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
Purchaser.
Subscribed and sworn before me this _____ day of ____________________, _____.
________________________________________
NOTARY PUBLIC
COUNTY OF ______________________________
STATE OF _______________________________
My commission expires the _____ day of
____________________, 200_.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association as Bond Administrator
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-COMM 2000-C1
Re: Commercial Mortgage Pass-Through Certificates, COMM 2000-C1,
Class [R][LR]
------------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has no
actual knowledge that such affidavit is not true or that [Transferee] is not a
Permitted Transferee (as defined in the Pooling and Servicing Agreement defined
in the attached affidavit) and has no actual knowledge or reason to know that
the information contained in paragraph 4 thereof is not true.
Very truly yours,
[Transferor]
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association as Bond Administrator
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-COMM 2000-C1
Deutsche Mortgage & Asset Receiving Corporation
One International Place, Room 520
Boston, Massachusetts 02110
Re: Transfer of Commercial Mortgage Pass-Through Certificates, COMM 2000-C1:
Class [X][F][G][H][J][K][L][M][N][O][R][LR]
------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of September 1, 2000 (the "Pooling and Servicing
Agreement"), by and among Deutsche Mortgage & Asset Receiving Corporation as
depositor, Orix Real Estate Capital Markets, LLC, as servicer (in such capacity,
the "Servicer") and as special servicer (in such capacity, the "Special
Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"), LaSalle Bank National Association, as bond administrator (in such
capacity, the "Bond Administrator"), and the other parties named therein, on
behalf of the holders of Commercial Mortgage Pass-Through Certificates, COMM
2000-C1 (the "Certificates") in connection with the transfer by (the "Seller")
to the undersigned (the "Purchaser") of [$ aggregate Certificate Balance][ %
Percentage Interest] of Class [X][F][G][H][J][K][L][M][N][O][R][LR]
Certificates, in certificated fully registered form (such registered interest,
the "Certificate"). Terms used but not defined herein shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
[For Institutional Accredited Investors only] 1. The Purchaser is an
institutional investor and an "accredited investor" (an entity meeting the
requirements of Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "1933 Act")) and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the investment in the Certificate, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment. The Purchaser is acquiring the Certificate for its own account or
for one or more accounts (each of which is an "institutional accredited
investor") as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs
incurred by it in connection with this transfer.
[For Qualified Institutional Buyers only] 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 "1933 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.
[For Affiliated Persons only]. 1. The Purchaser is a person involved in the
organization or operation of the issuer or an affiliate of such a person, as
defined in Rule 405 of the Securities Act of 1933, as amended (the "1933 -----
Act"). ---
2. The Purchaser's intention is to acquire the Certificate (a) for investment
for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, or (ii) institutional
"accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the 1933 Act, pursuant to any other
exemption from the registration requirements of the 1933 Act, subject in the
case of this clause (ii) to (a) the receipt by the Certificate Registrar of a
letter substantially in the form hereof, (b) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the 1933 Act, (c)
the receipt by the Certificate Registrar of such other evidence acceptable to
the Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act and other applicable laws, and (d) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. It understands that the Certificate (and any
subsequent Individual Certificate) has not been registered under the 1933 Act,
by reason of a specified exemption from the registration provisions of the 1933
Act which depends upon, among other things, the bona fide nature of the
Purchaser's investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the 1933 Act or the 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.
4. The Purchaser has reviewed the Private Placement Memorandum dated
September 11, 2000, relating to the Certificates (the "Private Placement
Memorandum") and the agreements and other materials referred to therein and has
had the opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by the Private Placement
Memorandum.
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 an Individual
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate, except in compliance with Section 5.02 of the Pooling and Servicing
Agreement.
7. Check one of the following:
[_] The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
[_] The Purchaser is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Certificate Registrar (or its agent) with respect to
Distributions to be made on the Certificate(s). The Purchaser has
attached hereto [either (i) a duly executed IRS Form W-8BEN (or
successor form), which identifies such Purchaser as the beneficial
owner of the Certificate(s) and states that such Purchaser is not a
U.S. Person or (ii)] two duly executed copies of IRS Form W-8ECI (or
successor form), which identify such Purchaser as the beneficial
owner of the Certificate(s) and state that interest and original
issue discount on the U.S. Securities is, or is expected to be,
effectively connected with a U.S. trade or business. The Purchaser
agrees to provide to the Certificate Registrar updated [IRS Forms
W-8BEN or] IRS Forms W-8ECI, as the case may be, any applicable
successor IRS forms, or such other certifications as the Certificate
Registrar may reasonably request, on or before the date that any
such IRS form or certification expires or becomes obsolete, or
promptly after the occurrence of any event requiring a change in the
most recent IRS form of certification furnished by it to the
Certificate Registrar.*
---------------
* Bracketed language does not apply to Class R and LR.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership (except to the
extent provided in applicable Treasury Regulations) or other entity created or
organized in or under the laws of the United States, any state or the District
of Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate the income of which is subject to U.S.
federal income taxation regardless of its source, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of such trust, and one or more United States fiduciaries have the
authority to control all substantial decisions of such trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
Please make all payments due on the Certificates:**
(a) by wire transfer to the following account at a bank or entity in New
York, New York, having appropriate facilities therefor:
Account number:______________________________________________
Institution:_________________________________________________
(b) by mailing a check or draft to the following address:
_________________________________________________________
_________________________________________________________
_________________________________________________________
Very truly yours,
______________________________________
[Purchaser]
By:___________________________________
Name:
Title:
Dated:
---------------
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b)
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
[Date]
LaSalle Bank National Association as Bond Administrator
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-COMM 2000-C1
Deutsche Mortgage & Asset Receiving Corporation
One International Place, Room 520
Boston, Massachusetts 02110
Re: Commercial Mortgage Pass-Through Certificates, COMM 2000-C1, Class
[F][G][H][J][K][L][M][N][O][R][LR]
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Ladies and Gentlemen:
___________________________________ (the "Purchaser") intends to purchase
from ___________________________________ (the "Seller") $ initial Certificate
Balance or % Percentage Interest of Commercial Mortgage Pass-Through
Certificates, COMM 2000-C1, Class [F][G][H][J][K][L][M][N][O][R][LR], CUSIP No.
__________ (the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement dated as of September 1, 2000 (the "Pooling and Servicing Agreement"),
by and among Deutsche Mortgage & Asset Receiving Corporation as depositor, Orix
Real Estate Capital Markets, LLC, as servicer (in such capacity, the "Servicer")
and as special servicer (in such capacity, the "Special Servicer"), Wells Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "Trustee"), LaSalle Bank
National Association, as bond administrator (in such capacity, the "Bond
Administrator"), and the other parties named therein. All capitalized terms used
herein and not otherwise defined shall have the meaning set forth in the Pooling
and Servicing Agreement. The Purchaser hereby certifies, represents and warrants
to, and covenants with, the Depositor, the Certificate Registrar and the Bond
Administrator that:
1. The Purchaser is not (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 Code, a governmental plan, as defined in Section
3(32) of ERISA or other plan, 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 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 (except in the case of the Class R and Class LR Certificates)
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 be exempt from the prohibited transaction provisions of
Section 406 and 407 of ERISA and Section 4975 of the Code under Sections I and
III of PTCE 95-60, or a substantially similar exemption under Similar Law; and
2. The Purchaser understands that if the Purchaser is a Person referred to in
1(a) or 1(b) above, except in the case of the Class R or Class LR Certificate,
which may not be transferred unless the transferee represents it is not such a
Person, such Purchaser is required to provide to the Depositor, the Bond
Administrator and the Certificate Registrar any Opinions of Counsel, officers'
certificates or agreements as may be required by such Persons, and which
establishes to the satisfaction of the Depositor, the Bond Administrator and the
Certificate Registrar that the purchase and holding of the Certificates by or on
behalf of a Plan will not result in the assets of the Trust being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA
and the Code or Similar Law, and will not constitute or result in a prohibited
transaction within the meaning of Section 406 and Section 407 of ERISA and
Section 4975 of the Code or any corresponding provision of any Similar Law, and
will not subject the Depositor, the Trustee, the Bond Administrator or the
Certificate Registrar to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or Similar Law), which
Opinions of Counsel, officers' certificates or agreements shall not be at the
expense of the Servicer, the Depositor, the Trustee, the Bond Administrator or
the Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation
Letter on this _____ day of ____________________, _____.
Very truly yours,
[Purchaser]
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT E
REQUEST FOR RELEASE
________________[Date]
State Street Bank and Trust Company
as Custodian
225 Franklin Street
Boston, Massachusetts 02110
Attention:
Re: Commercial Mortgage Pass-Through Certificates, COMM 2000-C1
Dear __________________:
In connection with the administration of the Mortgage Files held by
you as Custodian under a certain Pooling and Servicing Agreement, dated as of
September 1, 2000 (the "Pooling and Servicing Agreement"), by and among Wells
Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank National Association, as
bond administrator, Deutsche Mortgage & Asset Receiving Corporation, as
depositor, and Orix Real Estate Capital Markets, LLC, as servicer and Orix Real
Estate Capital Markets, LLC, as special servicer, the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by you as Custodian with respect to the following described Mortgage Loan
for the reason indicated below:
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full. The [Servicer] [Special
Servicer] hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be
credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement.
_____ 2. The Mortgage Loan is being foreclosed.
_____ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Pooling and Servicing Agreement.
[SERVICER][SPECIAL SERVICER]
By:______________________________________
Name:_________________________________
Title:________________________________
cc: Wells Fargo Bank Minnesota, N.A.
as Trustee
11000 Broken Lane Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
<PAGE>
EXHIBIT F
[RESERVED]
<PAGE>
EXHIBIT G
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THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) TO A PERSON WHO IS NOT A "U.S. PERSON" AS DEFINED IN
REGULATION S UNDER THE 1933 ACT, (4) IN CERTIFICATED FORM TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (A)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE 1933 ACT, (5) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (6) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3A-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
<PAGE>
EXHIBIT H
GERMAN AMERICAN CAPITAL CORPORATION PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective September 1, 2000, between German American Capital Corporation, as
seller (the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to COMM 2000-C1 Mortgage
Trust, a trust fund (the "Trust Fund") to be formed by the Purchaser, beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Standard & Poor's Ratings Services, a division of the McGraw Hill
Companies and Fitch, Inc. (together, the "Rating Agencies"). Certain classes of
the Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of September 1, 2000 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, ORIX Real Estate
Capital Markets, LLC, as servicer (in such capacity, the "Servicer") and special
servicer (in such capacity, the "Special Servicer"), LaSalle Bank National
Association, as Bond Administrator (the "Bond Administrator"), Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"), and the other parties specified
therein. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc., J. P. Morgan Securities Inc. and Chase
Securities Inc. (together, the "Underwriters") pursuant to an underwriting
agreement dated September 11, 2000 (the "Underwriting Agreement"). The
Purchaser intends to sell the remaining Certificates (the "Non-Registered
Certificates") pursuant to a certificate purchase agreement dated
September 11, 2000 (the "Certificate Purchase Agreement") to the purchasers
named therein (the "Initial Purchasers").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
----------------------
The Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on September 20, 2000
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on September 1, 2000 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$419,980,474, subject to a variance of plus or minus 5%. The purchase price of
the Mortgage Loans shall be calculated pursuant to that certain Letter of
Intent, dated May 18, 2000, between, among others, the Seller and the Purchaser.
SECTION 2. Conveyance of Mortgage Loans.
----------------------------
(a) On the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof and the issuance of the
Certificates, the Seller agrees to sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule, including all interest and principal received or receivable by
the Seller on or with respect to the Mortgage Loans after the Cut-off Date,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans;
provided, however, that in the case of any Mortgage Loan with an Anticipated
Repayment Date prior to maturity (each an "ARD Loan") accruing Excess Interest
at an annual rate of greater than 2%, such ARD Loan shall be deemed to have been
modified to provide that, as of the Cut-off Date, such ARD Loan shall accrue
Excess Interest at an annual rate of no more than 2%; provided, further, that
with respect to such limitation of Excess Interest, the related borrowers shall
be third-party beneficiaries of such modification of such ARD Loan. The
Purchaser shall be entitled to (and, to the extent received by or on behalf of
the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date; provided,
however, that all scheduled payments of principal and interest accrued but not
paid or due thereon, due on or before the Cut-off Date and collected after the
Cut-off Date shall belong to the Seller, and the Purchaser or its successors or
assigns shall promptly remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain a third
party vendor reasonably satisfactory to the Directing Certificateholder to
complete the assignment and recordation of the related Loan Documents. On or
promptly following the Closing Date, the Seller shall cause such third party
vendor, to the extent possession of recorded copies of each Mortgage and the
documents described in clauses (iv), (v), (vi), (vii), (viii), (xi), (xvii) and
(xviii) of Exhibit B have been delivered to it, at the expense of the Seller,
(1) to prepare and record (a) each Assignment of Mortgage referred to in clause
(iii) of Exhibit B which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in clauses
(iv) and (v) of Exhibit B (if not otherwise included in the related Assignment
of Mortgage) which has not yet been submitted for recordation; and (2) to
prepare and file each UCC financing statement referred to in clause (xi) or
(xviii) which has not yet been submitted for filing. The Seller shall direct the
related third party vendor to promptly prepare and submit (and in no event later
than 30 Business Days following the receipt of the related documents in the case
of clause 1(a) above and 60 days following the receipt of the applicable
documents in the case of clauses 1(b) and 2 above) for recording or filing, as
the case may be, in the appropriate public recording office, each such document.
In the event that any such document is lost or returned unrecorded because of a
defect therein, the Seller, at its expense, shall promptly prepare a substitute
document for signature by the Purchaser or itself, as applicable, and thereafter
the Seller shall cause each such document to be duly recorded. The Seller shall,
promptly upon receipt of the original recorded copy (and in no event later than
five Business Days following such receipt) deliver such original to the
Custodian (in the case of each UCC, with evidence of filing thereon).
Notwithstanding anything to the contrary contained in this Section 2, in those
instances where the public recording office retains the original Mortgage,
Assignment of Mortgage or Reassignment of Assignment of Leases, Rents and
Profits, if applicable, after any has been recorded, the obligations hereunder
of the Purchaser shall be deemed to have been satisfied upon delivery to the
Custodian of a copy of such Mortgage, Assignment of Mortgage or Reassignment of
Assignment of Leases, Rents and Profits, if applicable, certified by the public
recording office to be a true and complete copy of the recorded original
thereof.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller hereby agrees that, at least five (5) Business
Days before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Note referred to in clause (i) of Exhibit B has been
delivered by the Seller with respect to each such Mortgage File.
If the Seller cannot deliver any original or certified recorded
document described in Section 2 on the Closing Date, the Seller shall use its
best efforts, promptly upon receipt thereof and in any case not later than 45
days from the Closing Date (except as described below with respect to the items
described in clauses (ii), (iv), (viii), (xi) and (xii) of Exhibit B) to deliver
such original or certified recorded documents to the Trustee (unless the Seller
is delayed in making such delivery by reason of the fact that such documents
shall not have been returned by the appropriate recording office in which case
it shall notify the Trustee in writing of such delay).
In the event Seller fails to so deliver each such Mortgage File to
the Trustee, the Purchaser and its successors and assigns shall be entitled to
pursue any rights or remedies in respect of such failure as may be available
under applicable law. If the Seller cannot deliver, or cause to be delivered, as
to any Mortgage Loan, the original or a copy of any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of Exhibit
B, with evidence of recording thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, or because such original recorded document
has been lost or returned from the recording or filing office and subsequently
lost, as the case may be, the delivery requirements of this Section 2(b) shall
be deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the Seller to be a true and complete copy of
the original thereof submitted for recording or filing, as the case may be) has
been delivered to the Trustee, and either the original of such missing document
or instrument, or a copy thereof, with evidence of recording or filing, as the
case may be, thereon, is delivered to or at the direction of the Purchaser (or
any subsequent owner of the affected Mortgage Loan, including without limitation
the Trustee) within 90 days of the Closing Date (or within such longer period
after the Closing Date as the Purchaser (or such subsequent owner) may consent
to, which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a commitment for title insurance "marked-up"
at the closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
has been received by the Seller and the issuance of the Certificates, the
Trustee shall be authorized to release to the Purchaser or its designee all of
the Mortgage Files in the Trustee's possession relating to the Mortgage Loans.
The Purchaser and the Seller have delivered, contemporaneously with
their execution of this Agreement, a power of attorney to each of the Servicer
and the Special Servicer at the direction of the Directing Certificateholder or
its assignees, to take such other action as is necessary to effect the delivery,
assignment and/or recordation of any documents and/or instruments relating to
any Mortgage Loan which have not been delivered, assigned or recorded at the
time required for enforcement by the Trust Fund. The Seller will be required to
effect at its expense the assignment and recordation of its Loan Documents until
the assignment and recordation of all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and shall thereafter deliver the substitute or corrected
document to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee) for recording
or filing, as appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under
its control) relating to the Mortgage Loans that are not required to be a part
of a Mortgage File in accordance with Exhibit B but that are reasonably required
to service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale, including for accounting purposes.
(f) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loans and all rights and remedies under this Agreement to
the Trustee, including, without limitation, all rights and remedies as may be
available under applicable law to the Purchaser in the event of a breach of a
representation or warranty pursuant to Section 4(a) hereof or in the event of a
Defect; provided, that the Trustee shall be a third-party beneficiary of this
Agreement and shall be entitled to enforce any obligations of the Seller
hereunder in connection with a breach of any such representation or warranty or
a Defect as if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
------------------------------------------------------------
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
--------------------------------------------------------
(a) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Maryland, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by the
Seller, will not violate the Seller'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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with, the
terms of this Agreement will not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller. (vi) No litigation is pending or, to the
best of the Seller's knowledge, threatened against the Seller the outcome
of which, in the Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Except with respect to Deutsche Bank Inc., an affiliate,
acting as Underwriter and Initial Purchaser, neither the Seller nor anyone
acting on its behalf has (A) offered, pledged, sold, disposed of or
otherwise transferred any Certificate, any interest in any Certificate or
any other similar security to any person in any manner, (B) solicited any
offer to buy or to accept a pledge, disposition or other transfer of any
Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (C) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner with
respect to any Certificate, any interest in any Certificate or any similar
security, or (E) taken any other action, that (in the case of any of the
acts described in clauses (A) through (E) above) would constitute or result
in a violation of the Securities Act or any state securities law relating
to or in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Certificate not otherwise intended to be a Registered
Certificate. In addition, the Seller will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any of the Certificates or interests
therein. For purposes of this paragraph 4(b)(viii), the term "similar
security" shall be deemed to include, without limitation, any security
evidencing or, upon issuance, that would have evidenced an interest in the
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-4 through A-7, inclusive, of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (as defined in
Section 9) under the headings "Summary of Prospectus Supplement--The
Mortgage Pool", "Risk Factors" and "Description of the Mortgage Pool", set
forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the Seller
with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) the filing or recording of financing
statements, instruments of assignment and other similar documents necessary
in connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties made pursuant to and set forth in
subsection (b) above which materially and adversely affects the interests of the
Purchaser or a breach of any of the representations and warranties made pursuant
to subsection (a) above and set forth in Exhibit C which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates), the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance of, and compliance with, the terms of this Agreement by
the Purchaser, will not violate the Purchaser'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 Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser 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 Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with, the
terms of this Agreement will not constitute a violation of, any law, any
judgment, 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 Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters, the
Initial Purchasers and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
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(a) Upon discovery by any of the parties hereto of any Defect (as
defined in the Pooling and Servicing Agreement) in respect of the Mortgage File
for any Mortgage Loan or a breach of any representation or warranty made
pursuant to Section 4(a) and set forth in Exhibit C, which Defect or breach, as
the case may be, materially and adversely affects the value of any Mortgage Loan
(it being understood and agreed that the non-delivery of any of the items
identified in clauses (i), (ii) or (iii) of Exhibit B with respect to a Mortgage
Loan shall constitute a Defect that materially and adversely affects the value
of such Mortgage Loan) or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee, the
Servicer, the Special Servicer and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Purchaser, the Bond Administrator, the Seller, the Directing Certificateholder,
the Custodian, the Servicer, the Special Servicer (in the case of a Specially
Serviced Mortgage Loan) or the Trustee, as applicable. Within 90 days of receipt
of notice by the Seller, from the Servicer, the Special Servicer, the Trustee,
the Custodian or the Bond Administrator, of such breach or Defect, the Seller
shall cure such Defect or breach, as the case may be, in all material respects
or repurchase the affected Mortgage Loan from the then owner(s) thereof at the
applicable Repurchase Price (as defined in the Pooling and Servicing Agreement
as in effect on the Closing Date) on a whole loan, servicing released basis, by
payment of such Repurchase Price by wire transfer of immediately available funds
to the account designated by such owner(s); provided, however, that in the event
that such breach is capable of being cured, as determined by the Servicer and
the Special Servicer, but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such breach, the Seller
will have up to an additional 90 days to complete such cure as provided in the
Pooling and Servicing Agreement (as in effect on the Closing Date); provided,
further, that with respect to such additional period, the Seller is required to
deliver an officer's certificate to the Trustee, the Bond Administrator, the
Servicer and the Special Servicer setting forth the reason such breach is not
capable of being cured within the initial 90-day period and what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such breach will be cured within the additional period;
and provided, further, that in the event the Seller fails to cure such breach,
the Repurchase Price shall include interest on any Advances made in respect of
the related Mortgage Loan; provided, however, that in lieu of effecting any such
repurchase, within two years of the Startup Day, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement. The Seller will give written
notice to the Purchaser, the Bond Administrator and the Servicer of such
deposit, as directed by the Trustee. Conveyance of such Mortgage Loans shall be
made free and clear of all Liens and encumbrances created or suffered by the
Purchaser or any subsequent holder. Upon any substitution, the Qualifying
Substitute Mortgage Loan shall be subject to the terms of the Pooling and
Servicing Agreement in all respects. In the event that (x) any cure or
repurchase obligation under this Section arises by reason of the failure of a
Mortgage Loan to constitute a Qualified Mortgage and the Seller elects to
substitute a Qualifying Substitute Mortgage Loan in lieu of such cure or
repurchase, and (y) the Directing Certificateholder and, in the case of a
Mortgage Loan included in a Loan Pair, the Companion Holder (or an Operating
Advisor acting on its behalf), fail to consent to such substitution, then such
Mortgage Loan (and any related Cross-Collateralized Loan) must be repurchased by
the Seller.
In addition to the rights of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates) pursuant to this Section 6, if the Seller cannot deliver, or cause
to be delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in Section 2 and as listed in Exhibit B
(and provide evidence of recordation and/or assignment where applicable), the
Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates) may require the Seller to establish
a cash reserve (or provide a letter of credit) in the amount of 20% of the
principal balance of such Mortgage Loan for which any documents and/or
instruments specified in clauses (i) through (vii), (ix), (xi) and (xiv) through
(xvi) of Exhibit B remain missing, uncorrected, unrecorded or unassigned 18
months after the Closing Date. Amounts in such reserve related to a particular
Mortgage Loan shall either be released to the Seller upon delivery of the
documents and/or instruments specified in such clauses or when such Mortgage
Loan is paid in full, or if such Mortgage Loan is required to be repurchased as
provided in this Section, such amounts shall be credited against the Repurchase
Price for such Mortgage Loan.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Servicer, the Special Servicer, Trustee or Bond
Administrator to notify the Seller of a Defect or breach shall not constitute a
waiver of any cure or repurchase obligation.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Repurchase
Price by payment of such Repurchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) Notwithstanding Section 6(a), upon the receipt of notice from
either the Borrower under the Mortgage Loan identified as Loan No. 41 on the
Mortgage Loan Schedule (the "Wilton Office Plaza Loan") or the Purchaser or any
successor or assign thereof, that such Borrower intends to defease the Wilton
Office Plaza Loan on a date on or prior to the second anniversary of the Startup
Day of the Lower-Tier REMIC (the "Prepayment Date"), the Seller shall repurchase
such Mortgage Loan on or prior to such Prepayment Date at the Repurchase Price,
plus a Yield Maintenance Premium (together the "Wilton Repurchase Price") , by
payment of such Wilton Repurchase Price by wire transfer of immediately
available funds to the account designated by the then owner. In addition, if
such repurchase results in the imposition of a "prohibited transaction" or
"contribution" tax under the REMIC Provisions, the Seller agrees to pay such tax
and to indemnify and hold harmless the Purchaser and its successors and assigns
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject.
As used in this subsection (c), "Yield Maintenance Premium" means an
amount equal to the sum of (A) the present value as of the Prepayment Date of
the Calculated Payments from the Prepayment Date through the maturity date of
the Wilton Office Plaza Mortgage Loan (the "Wilton Maturity Date") determined by
discounting such payments at the Discount Rate. As used in this definition, the
term "Calculated Payments" shall mean the monthly payments of interest only
which would be due based on the principal amount of the Wilton Office Plaza Loan
on the Prepayment Date and assuming an interest rate per annum equal to the
difference (if such difference is greater than zero) between (y) the interest
rate borne by the Wilton Office Plaza Mortgage Loan and (z) the Yield
Maintenance Treasury Rate. As used in this definition, the term "Discount Rate"
shall mean the rate which, when compounded monthly, is equivalent to the Yield
Maintenance Treasury Rate, when compounded semi-annually. As used in this
definition, the term "Yield Maintenance Treasury Rate" shall mean the yield
calculated by the linear interpolation of the yields, as reported in the 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 Prepayment Date, of U.S. Treasury Constant Maturities with maturity dates
(one longer or one shorter) most nearly approximating the Wilton Maturity Date.
(d) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 6, the then owner(s) thereof shall
tender promptly or cause to be tendered promptly to the Seller, upon delivery of
a receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(e) Except as provided in Section 2(b), this Section 6 provides the
sole remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the Certificates)
respecting any Defect in a Mortgage File or any breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, or in
connection with the circumstances described in Section 6(b) or Section 6(c). If
the Seller defaults on its obligations to cure, to repurchase, or to substitute
for, any Mortgage Loan in accordance with Section 6(a) or Section 6(b) or to
repurchase the Wilton Office Plaza Loan in accordance with Section 6(c), or
disputes its obligation to cure, to repurchase, or to substitute for, any
Mortgage Loan in accordance with the applicable subsection, the Purchaser or its
successors and assigns may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. To the extent the Purchaser prevails in
such proceeding, the Seller shall reimburse the Purchaser for all necessary and
reasonable costs and expenses incurred in connection with the enforcement of
such obligation of the Seller to cure, to repurchase, or to substitute for, any
Mortgage Loan in accordance with Section 6(a) or Section 6(b) or to repurchase
the Wilton Office Plaza Loan in accordance with Section 6(c).
SECTION 7. Closing.
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The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, New York 10038 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and the
Aggregate Cut-off Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
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The Closing Documents shall consist of the following:
(a) This Agreement and a bill of sale duly executed and delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely, attaching thereto as exhibits the organizational documents of the
Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of New York, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) Written opinions of counsel for the Seller, in form reasonably
acceptable to counsel for the Purchaser and subject to such reasonable
assumptions and qualifications as may be requested by counsel for the Seller and
acceptable to counsel for the Purchaser, dated the Closing Date and addressed to
the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser and each Underwriter as
an addressee; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; but only if and
to the extent that (i) any such untrue statement or alleged untrue statement is
with respect to information regarding the Mortgage Loans contained in the Loan
Detail or, to the extent consistent therewith, the Diskette; or (ii) any such
untrue statement or alleged untrue statement or omission or alleged omission is
with respect to information regarding the Seller or the Mortgage Loans contained
in the Prospectus Supplement or the Memorandum under the headings "Summary of
Prospectus Supplement--The Mortgage Pool", "Risk Factors" or "Description of the
Mortgage Pool" or contained on Annex A to the Prospectus Supplement (exclusive
of the Loan Detail), and such information does not represent a restatement or
aggregation of information contained in the Loan Detail; or (iii) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the Seller
set forth in or made pursuant to Section 4; provided, that the indemnification
provided by this Section 9 shall not apply to the extent that such untrue
statement of a material fact or omission of a material fact necessary to make
the statements made, in light of the circumstances in which they were made, not
misleading, was made as a result of an error in the manipulation of, or
calculations based upon, the Loan Detail. This indemnity agreement will be in
addition to any liability which the Seller may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean
the registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated August 11,
2000, as supplemented by the prospectus supplement dated September 11, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated September 11, 2000, relating
to the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "Indemnified Party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "Indemnifying Party") under this
Section 9, notify the Indemnifying Party in writing of the commencement thereof;
but the omission to notify the Indemnifying Party will not relieve it from any
liability that it may have to any Indemnified Party otherwise than under this
Section 9. In case any such action is brought against any Indemnified Party and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified Party;
provided, however, that if the defendants in any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified Party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other Indemnified Parties that are different from
or additional to those available to the Indemnifying Party, the Indemnified
Party or Indemnified Parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such Indemnified Party or Indemnified Parties. Upon receipt
of notice from the Indemnifying Party to such Indemnified Party of its election
to assume the defense of such action and approval by the Indemnified Party of
counsel, which approval shall not be unreasonably withheld, the Indemnifying
Party will not be liable for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof, unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser and the Indemnifying Party, representing all the Indemnified Parties
under Section 9(a) and Section 1 of the Underwriting Agreement who are parties
to such action), (ii) the Indemnifying Party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of commencement of the action or
(iii) the Indemnifying Party has authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii). The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party, but
only to the extent provided in paragraph (a) of this Section 9, from and against
any loss or liability by reason of such settlement or judgment. If the
Indemnifying Party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the Indemnified Party, which
consent shall not be unreasonably withheld or delayed, or, if such settlement
provides for release of the Indemnified Party in connection with all matters
relating to the proceeding which has been asserted against the Indemnified Party
in such proceeding by the other parties to such settlement, without the consent
of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Indemnified Party, and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10. Costs.
------
Costs relating to the transactions contemplated hereby shall be
borne by the respective parties hereto pursuant to that certain Letter of
Intent, dated May 18, 2000, between, among others, the Seller and Purchaser.
SECTION 11. Notices.
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All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by certified mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Deutsche Mortgage & Asset Receiving
Corporation, One International Place, Room 520, Boston, Massachusetts 02110,
Attention: R. Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to
Anna Glick, Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New
York 10038, facsimile no. (212) 504-6666, or such other address or facsimile
number as may hereafter be furnished to the Seller in writing by the Purchaser;
and if to the Seller, addressed to German American Capital Corporation, 31 West
52nd Street, New York, New York 10019, Attention: Greg Hartch, facsimile no.
(212) 469-4579, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
-------------------------
Each of the officers, directors and controlling persons referred to
in Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto. Furthermore, the Seller hereby acknowledges and
agrees that L-O Broadway Investments, Inc., the holder of the Crowne Plaza
Companion Loan, shall be a third party beneficiary of the representations,
warranties, covenants and indemnities of the Seller set forth in this Agreement
with respect to the Crowne Plaza Mortgage Loan, and, pursuant to the Pooling and
Servicing Agreement, shall have the right to enforce such representations,
warranties, covenants and indemnities directly against the Seller.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
--------------------------
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. Further Assurances.
------------------
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
----------------------
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller and the Purchaser, and their
permitted successors and assigns, and the indemnified parties referred to in
Section 9.
SECTION 19. Amendments.
----------
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
SECTION 20. No Recourse.
-----------
No recourse under any obligation, covenant or agreement of the
Purchaser contained in this Agreement shall be had against J.H. Management
Corporation ("JHM"), JH Holdings Corporation ("JHHC") or any incorporator,
stockholder, officer, director or employee of the Purchaser, JHM or JHHC, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Agreement is solely a corporate obligation of the Purchaser, and that no
personal liability whatever shall attach to or be incurred by the incorporators,
stockholders, officers, directors or employees of the Purchaser, JHM or JHHC, or
any of them under or by reason of any of the obligations, covenants, or
agreements of the Purchaser contained in this Agreement, or implied therefrom,
and that any and all personal liability for breaches by the Purchaser of any of
such obligations, covenants or agreements either at common law or at equity, or
by statute or constitution, of JHM or JHHC and every such incorporator,
stockholder, officer, director or employee is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Gregory B. Hartch
--------------------------------------
Name: Gregory B. Hartch
Title: Authorized Signatory
By: /s/ Eric M. Schwartz
--------------------------------------
Name: Eric M. Schwartz
Title: Vice President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Rosa Oliveri
--------------------------------------
Name: Rosa Oliveri
Title: Vice President
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of the
related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date and that the
Mortgage Loan is a fixed rate Mortgage Loan;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the (A) Maturity Date for each Mortgage Loan, and (B) with
respect to each Mortgage Loan with an Anticipated Repayment Date, the
Anticipated Repayment Date;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(i) whether such Mortgage Loan has an Anticipated Repayment Date;
(j) the Primary Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan; and
(l) whether such Mortgage Loan has a hard lockbox or a springing
lockbox.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Note, endorsed by the most recent endorsee prior to
the Trustee or, if none, by the Originator, without recourse, either in blank or
to the order of the Trustee in the following form: "Pay to the order of Wells
Fargo Bank Minnesota, N.A., as trustee for the registered holders of COMM
2000-C1, Commercial Mortgage Pass-Through Certificates, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the Originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) the original or a copy of the related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage) and,
if applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the Originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the Originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued as of the date of the origination of the Mortgage Loan, together with all
endorsements or riders (or copies thereof) that were issued with or subsequent
to the issuance of such policy, insuring the priority of the Mortgage as a first
lien on the Mortgaged Property or a "marked up commitment to insure";
(x) the original or a copy of any guaranty of the obligations of the
mortgagor under the Mortgage Loan together with (A) if applicable, the original
or copies of any intervening assignments of such guaranty showing a complete
chain of assignment from the Originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any, and (B) an original assignment of
such guaranty executed by the most recent assignee thereof prior to the Trustee
or, if none, by the Originator;
(xi) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and maintain
the perfection of) any security interest held by the Originator of the Mortgage
Loan (and each assignee of record prior to the Trustee) in and to the personalty
of the Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Seller (or its agent) at the
time the Mortgage Files were delivered to the Custodian, together with original
UCC-2 or UCC-3 financing statements showing a complete chain of assignment from
the secured party named in such UCC-1 financing statement to the Trustee and (B)
if any such security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the Seller, a
UCC financing statement executed by the most recent assignee of record prior to
the Trustee or, if none, by the Originator, evidencing the transfer of such
security interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Note or other document or instrument referred to above was signed on behalf of
the Mortgagor pursuant to such power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage Loans, if any;
(xvi) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xvii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xviii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts,
if any, a copy of the UCC-1 financing statements, if any, submitted for filing
with respect to the Seller's security interest in the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts and all funds contained therein (and
UCC-3 financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders);
(xix) any other material written agreements related to the Mortgage
Loan;
(xx) with respect to any Loan Pair, all of the above documents with
respect to the related Companion Loan and the related Co-Lender Agreement or
similar agreements with respect to such Loan Pair; provided that a copy of the
Note, other than the original, shall be provided, and no assignments shall be
provided; and
(xxi) with respect to the transfer described in Section 2.01(b) of
the Pooling and Servicing Agreement, the originals or copies of the Loan REMIC
Declarations;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or 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. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and warrants,
as of the date hereinbelow specified or, if no such date is specified, as of the
Closing Date, except as set forth on Schedule C-1 hereto as follows (as used
herein, "to Seller's knowledge" or words of similar import means the knowledge
of such entity without investigation or inquiry relating to this transaction):
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than the right of a subservicer to directly service such Mortgage Loan as shown
on the Mortgage Loan Schedule). Such transfer validly assigns ownership of such
Mortgage Loan to the Purchaser free and clear of any pledge, lien, encumbrance
or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision of
the Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date. The Seller has not taken any
action that would cause the representations and warranties made by the related
Borrower under the Mortgage Loan not to be true and correct in any material
respect. The Seller has no knowledge that the material representations and
warranties made by such Borrower under the Mortgage Loan are not true and
correct in any material respect. Each Mortgage Loan is properly endorsed as
provided in the Pooling and Servicing Agreement, and such endorsement is
genuine.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. The Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest (subject only to any
prior purchase money security interests), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a UCC
financing statement, in all personal property owned by the Borrower that is used
in, and is reasonably necessary to, the operation of the related Mortgaged
Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. Neither the Seller
nor, to the Seller's knowledge, any holder of such Mortgage Loan, has by act or
omission, done anything that would materially impair the coverage under such
Title Policy and Seller has no knowledge of any circumstances that would impair
such coverage. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer that issued such Title Policy is qualified to do business in the state
in which the related Mortgaged Property is located. The Mortgage has been
submitted for recordation in the applicable jurisdiction, the full amount of the
Mortgage has been recorded on the related Mortgaged Property and all applicable
mortgage recording taxes have been paid.
(vii) No Waivers by Seller of Material Defaults. The Seller, and to
its knowledge, any prior holder of such Mortgage Loan, has not waived any
material default, breach, violation or event of acceleration existing under the
related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, right of rescission, defense or counterclaim to such Mortgage Loan or
the related Mortgage security agreements, Assignment of Leases, Rents and
Profits.
(ix) Condition of Property; Condemnation. The related Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage that would
materially and adversely affect its value as security for such Mortgage Loan.
The Seller has no knowledge of any pending or threatened proceeding for the
condemnation of all or any material portion of the related Mortgaged Property.
(x) Compliance with Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied in all material respects with all applicable laws
relating to the origination, funding and terms of such Mortgage Loan (including
usury laws) in effect at its date of origination unless the failure to comply
with such laws would not have a material adverse effect on the related Mortgage
Loan.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of
such Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and excluding provisions
relating to default interest, yield maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured against loss by hazards of extended coverage in an amount
(subject to a customary deductible) at least equal to the lesser of (1) the
outstanding principal balance of such Mortgage Loan or (2) 100% of the full
replacement cost of the improvements located on such Mortgaged Property. If any
portion of the improvements on the related Mortgaged Property was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, and flood insurance was available, a flood insurance policy meeting any
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable actual cash
value of such Mortgaged Property, (3) the maximum amount of insurance available
under the National Flood Insurance Act of 1968, as amended, and (4) 100% of the
replacement cost of the improvements located on such Mortgaged Property. The
Mortgage requires the Borrower to maintain such insurance in respect of the
Mortgaged Property in addition to comprehensive general liability insurance in
amounts customarily required by prudent institutional lenders for similar
properties, and at least twelve months rental or business interruption insurance
for Mortgaged Properties other than hotels, and eighteen months business
interruption insurance for hotel-related properties. All such insurance required
by the Mortgage to be maintained is in full force and effect and names the
Originator, the Seller or their respective successors or assigns as mortgagee,
loss payee or additional insured. All premiums on such insurance policies
required to be paid as of the date hereof have been paid. Each such insurance
policy requires 10-day prior written notice to the holder of the Mortgage of
termination or cancellation, and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. As of the date of
closing of the applicable Mortgage Loan and, to the Seller's knowledge, as of
the Closing Date, each insurer under such insurance policies has a claims paying
rating of "BBB" or better by at least one rating agency or A-/VII or higher by
A.M. Best's Key Rating Guide and is qualified to do business in the jurisdiction
where the related Mortgaged Property is located. Each Mortgage Loan obligates
the related Borrower to maintain all such insurance, and upon such Borrower's
failure to do so, authorizes the mortgagee to maintain such insurance at the
Borrower's cost and expense and to seek reimbursement therefor from such
Borrower.
(xiv) Environmental Condition. The Borrower with respect to each
Mortgage Loan has represented and warranted that except as set forth in certain
environmental reports included in the related loan documents, and to the best of
its knowledge, it has not used, caused or permitted to exist, and will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials; the related Borrower or an affiliate thereof
agrees to indemnify, defend and hold the mortgagee and its successors and
assigns harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted against,
any such party resulting from a breach of certain representations and warranties
or covenants given by the Borrower in connection with such Mortgage Loan. A
Phase I environmental report, and with respect to certain Mortgage Loans a Phase
II environmental report, was conducted by a reputable environmental engineer in
connection with such Mortgage Loan within 15 months prior to the Closing Date.
The Seller, having made no independent inquiry other than reviewing the
report(s), has no knowledge of any material and adverse environmental conditions
or circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). Such environmental report reveals no known, and the Seller
has no knowledge of, circumstances or conditions with respect to the Mortgaged
Property that would (i) constitute or result in a material violation of any
environmental laws, (ii) require any expenditure material in relation to the
principal balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any environmental laws for which adequate sums were not
reserved in connection with the origination of the Mortgage Loan, or (iii)
require substantial cleanup, remedial action or other material response under
any environmental laws in excess of any escrow reserved at the origination of
the Mortgage Loan. The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Borrower to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund or any Mortgage Loan not identified on the
Mortgage Loan Schedule as so cross-collateralized.
(xvi) Waivers and Modifications. The terms of the related Mortgage
and the Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in a written instrument included in
the related Mortgage File and which is duly recorded to the extent required to
perfect, maintain or continue the validity and priority of the Mortgage, Note
and related documents.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Borrower's Interest in Mortgaged Property. Except with
respect to Mortgage Loans the Borrower of which is a lessee under a ground lease
of a Mortgaged Property or a combination of a ground lease and a fee simple
interest (and so identified in the Mortgage Loan Schedule), the interest of the
related Borrower in the related Mortgaged Property consists of a fee simple
estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage
referred to in clause (iii) of Exhibit B constitutes the legal, valid and
binding assignment of such Mortgage from the relevant assignor to the Trustee.
The Assignment of Leases, Rents and Profits set forth in the Mortgage or
separate from the related Mortgage and related to and delivered in connection
with each Mortgage Loan establishes and creates a valid, subsisting and, subject
only to Permitted Encumbrances, enforceable first priority lien and first
priority security interest in the related Borrower's interest in all leases,
rents, subleases, licenses or other agreements, to the extent permitted by law,
pursuant to which any person is entitled to occupy, use or possess all or any
portion of the real property subject to the related Mortgage, and each assignor
thereunder has the full right to assign the same, to the extent permitted by
law. The related assignment of any Assignment of Leases, Rents and Profits and
any related security agreement, UCC financing statement or similar agreement or
instrument, not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment of Leases,
Rents and Profits or other agreement or instrument. The related Mortgage or such
Assignment of Leases provides for the appointment of a receiver for rents, or
allows the lender to enter into possession to collect rents or provides for
rents to be paid directly to the mortgagee in the event of a default.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan
that are, as of the Closing Date, required to be deposited with the mortgagee or
its agent have been so deposited. All such escrows have been conveyed to Orix
Real Estate Capital Markets, LLC, as servicer or the related subservicer for
such Mortgage Loan. Any and all requirements under each Mortgage Loan as to
completion of any improvements and as to disbursement of any funds escrowed for
such purpose, which requirements were to have been complied with on or before
the Closing Date have been complied with, or funds so escrowed have not been
released.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based
on surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), (a) as of the date of such origination, no improvement that
was included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent and (b) as of the date of origination, there were no material
encroachments of any part of the buildings on such Mortgaged Property over
easements (in each case, unless affirmatively covered by the Title Policy
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent. To
the Seller's knowledge, based upon opinions of counsel, an endorsement to such
Title Policy and/or other due diligence customarily performed by the Seller, the
improvements located on or forming part of such Mortgaged Property comply in all
material respects with applicable zoning laws and ordinances (except to the
extent that they may constitute legal nonconforming uses) and any immaterial
violation does not adversely affect the value of such Mortgaged Property.
(xxiv) No Material Default. (A) To the Seller's knowledge, there
exists no material default, breach or event of acceleration under the related
Mortgage, Note, Assignment of Leases and Rents, security agreement or guaranty
and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. (A) In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected (either directly by the Seller, by its correspondent or by a third
party) the Mortgaged Property and (B) Seller has inspected or caused to be
inspected each related Mortgaged Property within the 12 months preceding the
Cut-off Date.
(xxvi) No Equity Participation or Contingent Interest. Except for
any related Excess Interest, the Mortgage Loan contains no equity participation
by the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property (other than a tenant required to make its lease payments
directly to the holder of the related Mortgage Loan), directly or indirectly,
for the payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge as of the
Closing Date, based on due diligence customarily performed in the origination of
comparable mortgage loans by the Seller as of the origination date, (i) the
related Borrower or operator of the related Mortgaged Property was in possession
of all material licenses, permits and authorizations required by applicable laws
for the ownership, occupancy and operation of the related Mortgaged Property as
it was then operated, and such licenses, permits and authorizations are in full
force and effect and, (ii) if a related Mortgaged Property is improved by a
hotel, the most recent inspection or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and authorizations did
not cite such Mortgaged Property for material violations that had not been cured
or as to which a plan of correction had not been submitted to and accepted by
such governmental authorities. To the extent required under applicable law as of
the date of origination and the Closing Date and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it originated and held
the Mortgage Loan.
(xxix) Servicing. The origination, servicing and collection
practices used by Seller and its designees with respect to the Mortgage Loan
have been in all material respects legal, proper and prudent and have met
industry standards for servicing of commercial mortgage loans. No fraud with
respect to such Mortgage Loan has taken place on the part of Seller or, to
Seller's knowledge, on the part of any originator or Borrower in connection with
the origination of such Mortgage Loan. No other person has been granted or
conveyed the right to service the Mortgage Loans or receive any consideration in
connection therewith (other than the subservicers listed on the Mortgage Loan
Schedule).
(xxx) Customary Remedies. The related Mortgage or Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxi) Conversion. The indebtedness evidenced by a Mortgage Loan is
not convertible to an ownership interest in the related Mortgaged Property or
the related Borrower.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied
either to restore or repair the Mortgaged Property, or to repay the principal of
the Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the
related Borrower at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at least equal
to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (X) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (Y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (1) and (2) of this
paragraph (xxxiii) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans; or (B) substantially all the proceeds of such Mortgage Loan were
used to acquire, improve or protect the real property which served as the only
security for such Mortgage Loan (other than a recourse feature or other third
party credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). Any prepayment premium and yield maintenance charges
applicable to the Mortgage Loan constitutes "customary prepayment penalties"
within the meaning of Treasury Regulation Section 1.860G-1(b)(2).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's knowledge, there are no pending
actions, suits or proceedings or governmental investigations by or before any
court or governmental authority against or affecting the related Borrower or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Borrower to pay principal, interest or
any other amounts due under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the
related Borrower's fee simple estate in real estate or, if the related Mortgage
Loan is secured in whole or in part by the interest of a Borrower as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Borrower's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related Mortgage;
does not restrict the use of the related Mortgaged Property by the lessee
or its successors and assigns in a manner that would materially adversely
affect the security provided by the related Mortgage; and, to the knowledge
of the Seller, there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that are
a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the ground lessor's related fee interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but (except in
the case where such consent cannot be unreasonably withheld) without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor (except in the case where such consent cannot be unreasonably
withheld);
(d) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease and Seller has given the
lessor proper notice of the Mortgage lien;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any material
default by the lessee to the mortgagee, provided that the mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease, and such Ground Lease, or an estoppel
letter or other agreement, further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee unless a
copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice by certified mail,
return receipt requested of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease has an original term which extends not less
than ten years beyond the Stated Maturity Date of the related Mortgage
Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued interest
thereon and any insurance proceeds in respect of a total or substantially
total loss or taking may be applied either to payment of outstanding
principal and interest on the Mortgage Loan (except as otherwise provided
by law) or to rebuilding of the Mortgaged Property;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the related
Mortgage Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted, in
the absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of any subtenant of the lessee, or in any manner, which
would materially adversely affect the security provided by the related
Mortgage; and
(j) Such Ground Lease requires the lessor to enter into a new lease
with the Seller or its successors or assigns in the event of a termination
of the Ground Lease by reason of a default by the Borrower under the Ground
Lease, including rejection of the Ground Lease in a bankruptcy proceeding.
(k) Such Ground Lease may not be amended, modified or, except in the
case of a default, cancelled or terminated without the prior written
consent of the holder of the Mortgage Loan, and any such action without
such consent is not binding on such holder, including any increase in the
amount of rent payable by the lessee thereunder during the term of the
Mortgage Loan.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust,
a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release
of a portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements and the payment of a release
price or (c) a defeasance is affected in accordance with the terms of the
Mortgage Loan Documents, the related Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
(xxxix) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof. To Seller's knowledge, the related Mortgaged Property is not
encumbered by any debt, including subordinate or pari passu Mortgages or liens,
preferred equity interests with rights and terms comparable to mezzanine debt or
mezzanine debt other than the related Mortgage Loan or another Mortgage Loan.
(xl) Due-On-Sale; Due-On-Encumbrance. Each related Mortgage or Loan
Agreement contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or Loan Agreement, the related Mortgaged Property,
or any interest therein, is directly or indirectly transferred or sold (except
for a one-time transfer), or encumbered in connection with subordinate
financing. The Mortgage requires the Borrower to pay all reasonable fees and
expenses relating to obtaining any consent and approval required pursuant
thereto.
(xli) Borrower Bankruptcy. At the origination of such Mortgage Loan,
neither the related Borrower nor any guarantor was a debtor in any pending state
of federal bankruptcy or insolvency proceeding. To the Seller's knowledge, the
Borrower is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance, or (B) permits
defeasance (i) no earlier than two years after the Closing Date (as defined in
the Pooling and Servicing Agreement, dated as of September 1, 2000), (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the
disposition of the Mortgaged Property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xliii) Defeasance Costs. If the Mortgage Loan permits defeasance,
then the mortgage loan documents related to such Mortgage Loan require (a) the
Borrower to pay all rating agency fees associated with defeasance and all other
reasonable out-of-pocket expenses associated with defeasance such as
accountant's fees and opinions of counsel, or (b) that the Borrower provide a
REMIC opinion, an opinion regarding the first priority perfected security
interest in the defeasance, collateral, rating agency letters certifying no
rating qualification or downgrade on any securities, and accountant
certification that all payments from the defeasance collateral are sufficient to
make monthly principal and interest payments on such Mortgage Loan through
maturity.
(xliv) Release or Substitution of Collateral. Such Mortgage Loan
does not permit the release or substitution of collateral if such release or
substitution (a) would constitute a "significant modification" of such Mortgage
Loan within the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii) thereof).
Except with respect to an unimproved parcel which was not given any value in
connection with the underwriting or appraisal of the Mortgage Loan, neither the
related Mortgage Note nor the related Mortgage requires the lender to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon full prepayment or, in the case of a partial
release, partial prepayment in an amount at least equal to the amount allocated
in the Mortgage to such portion of the Mortgaged Property.
(xlv) Satisfaction. No Mortgage has been satisfied, cancelled,
rescinded or subordinated in whole or in material part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in material part and there is no executed agreement to effect any of
the foregoing.
(xlvi) Capital Contributions. The Mortgage Loan Seller is not, and
its affiliates are not, obligated to make any capital contribution to the
related Borrower under the terms of the Mortgage Loan documents (other than any
such contribution made at the time of the origination of the Mortgage Loan).
(xlvii) Non-Recourse Exceptions. Except as listed on Schedule C-1
hereto, the Borrower and an entity (or individual(s)) other than the Borrower
have agreed to be, jointly and severally, liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by the lender or
lender's assignee's by reason of or in connection with and to the extent of (i)
any fraud by the related Borrower (ii) any breach of the environmental covenants
contained in the related Mortgage Loan, and (iii) the misapplication of rents,
insurance proceeds or condemnation proceeds.
(xlviii) Anticipated Repayment Date Loans. With respect to each
Mortgage Loan that is a treated as an Anticipated Repayment Date Loan by the
Rating Agencies:
(a) The maximum rate increase after the Anticipated Repayment Date
is not greater than 200 basis points above the initial interest rate;
(b) Such Mortgage Loan begins amortizing immediately; and does not
have an interest only period after the Cut-off Date;
(c) The Anticipated Repayment Date is not less than seven years from
the origination date for such Mortgage Loan;
(d) Such Mortgage Loan provides that from the Anticipated Repayment
Date through the maturity date for such Mortgage Loan, all excess cash flow
(net of monthly expenses reasonably related to the operation of the
Mortgaged Property, amounts due for reserves established under the Mortgage
Loan, and payments for any others expenses, including capital expenses,
related to the Mortgaged Property which are approved by mortgagee) will be
applied to repay principal due under the Mortgage Loan;
(e) Mortgagee may not exercise default remedies relating to a
default in payment of principal and interest after the Anticipated
Repayment Date until the maturity date of the Mortgage Loan if the borrower
pays scheduled principal and interest payments (at the initial rate); and
(f) no later than the related Anticipated Repayment Date, the
related Borrower is required (if it has not previously done so) to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer.
(xlix) Lock-Box Loans. With respect to each Mortgage Loan that was
treated by the Rating Agencies as having a hard lock-box account (the "Hard
Lock-Box Loans") (and which is designated as a Hard Lock-Box Loan on the
Mortgage Loan Schedule), (a) the related lock-box account was established as of
the Closing Date, (b) the related lock-box account is under the control of the
mortgagee or its designee, and (c) the tenants of the Mortgaged Property
securing such Mortgage Loan remit payments directly to such lock-box account.
(l) Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
as otherwise described under "Description of the Mortgage Pool" in the
Prospectus Supplement and except for the imposition of a default rate.
(li) Single Asset Entity. Except as listed on Schedule C-1 attached
hereto, the Borrower on each Mortgage Loan is, as of the origination of the
Mortgage Loan, an entity, other than an individual, whose organizational
documents or the related Mortgage Loan Documents provide substantially to the
effect that the Borrower: (A) is formed or organized solely for the purpose of
owning and operating one or more of the Mortgaged Properties securing the
Mortgage Loans, (B) may not engage in any business unrelated to such Mortgaged
Property or Mortgaged Properties, (C) does not have any material assets other
than those related to its interest in and operation of such Mortgage Property or
Mortgaged Properties, (D) may not incur indebtedness other than as permitted by
the related Mortgage or other Mortgage Loan Documents, (E) has its own books and
records separate and apart from any other person, and (F) holds itself out as a
legal entity, separate and apart from any other person.
(lii) Delivery of Mortgage File. The Seller has delivered to the
Trustee or a Custodian appointed thereby, with respect to each Mortgage Loan, a
complete Mortgage File (subject to the provisions set forth in the Pooling and
Servicing Agreement).
(liii) Collateral. The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(liv) Assignability of Mortgage Note. Neither the related Mortgage
Note nor the related Mortgage contain provisions limiting the right or ability
of Seller to assign, transfer and convey such documents.
(lv) Tax Lots. Each Mortgaged Property constitutes one or more
complete separate tax lots.
(lvi) Operating Statements. The related Mortgage requires the
related Borrower to provide the holder of such Mortgage with quarterly and
annual operating statements, rent rolls and related information.
(lvii) Rating Agency Fees. The related Mortgage or other related
loan documents provide that the Borrower shall pay any fees payable to a Rating
Agency in connection with the approval of an assumption of the related Mortgage
Loan (if such Mortgage or other related loan documents provides that Rating
Agency approval is a specific condition precedent thereto.)
(lviii) Zoning. To the Seller's knowledge, as of the date of the
origination of the Mortgage Loan, the related Mortgaged Property is, in all
material respects, in compliance with, and is used and occupied in accordance
with, all restrictive covenants of record applicable to such Mortgaged Property
and applicable zoning laws.
(lix) Access to Public Road. As of the origination of such Mortgage
Loan and, to the knowledge of the Seller, as of the Closing Date, the related
Mortgaged Property has access to a public road.
(lx) Size of Mortgage Loans. As of the Closing Date, not more than
5% of the aggregate outstanding principal amount of all the Mortgage Loans being
purchased by the Purchaser on the Closing Date have the same Borrower or, to the
Seller's best knowledge, have Mortgagors that are affiliates of each other.
(lxi) Independent Appraiser. The Mortgage File contains an
appraisal of the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge had no interest, direct or indirect,
in the Mortgaged Property or the Borrower or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; the appraisal satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect on the date the
Mortgage Loan was originated.
(lxii) Credit Lease Loans. With respect to each Mortgage Loan which
is a Credit Lease Loan:
(A) To the Seller's knowledge, each credit lease ("Credit
Lease") contains customary and enforceable provisions which render
the rights and remedies of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor's rights thereunder;
(B) Each lessee has delivered an estoppel verifying the rents
and terms of the lease and acknowledging that no rent has been paid
in advance;
(C) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made by the tenant under the Credit
Lease or representations made by the related borrower under the
Mortgage Loan Documents, as of the closing date of each Credit Lease
Loan (1) each Credit Lease was in full force and effect, and no
default by the borrower or the tenant has occurred under the Credit
Lease, nor is there any existing condition which, but for the
passage of time or the giving of notice, or both, would result in a
default under the terms of the Credit Lease, (2) none of the terms
of the Credit Lease have been impaired, waived, altered or modified
in any respect (except as described in the related tenant estoppel),
(3) no tenant has been released, in whole or in part, from its
obligations under the Credit Leases, (4) there is no right of
rescission, offset, abatement, diminution, defense or counterclaim
to any Credit Lease, nor will the operation of any of the terms of
the Credit Leases, or the exercise of any rights thereunder, render
the Credit Lease unenforceable, in whole or in part, or subject to
any right of rescission, offset, abatement, diminution, defense or
counterclaim, and no such right of rescission, offset, abatement,
diminution, defense or counterclaim has been asserted with respect
thereto, and (5) each Credit Lease has a term ending on or after the
final maturity of the related Credit Lease Loan;
(D) The Mortgaged Property is not subject to any lease other
than the related Credit Lease, no Person has any possessory interest
in, or right to occupy, the Mortgaged Property except under and
pursuant to such Credit Lease and the tenant under the related
Credit Lease is in occupancy of the Mortgaged Property;
(E) The rental payments under the related Credit Lease are
equal to or greater than the payment due under the loan documents,
and are payable without notice or demand, and without set off,
counterclaim, recoupment, abatement, reduction or defense. The lease
payments are sufficient to pay the entire amount of scheduled
interest and principal on the Credit Lease Loan, subject to the
rights of the Tenant to terminate the Credit Lease or offset, abate,
suspend or otherwise diminish any amounts payable by the tenant under
the Credit Lease. Each Credit Lease Loan either (i) fully amortizes
over its original term and has no "balloon" payment of rent due under
the related Credit Lease or (ii) is a Balloon Loan, for which a
residual value insurance policy has been obtained that requires the
payment of an amount at least equal to the Balloon Payment due on the
related Maturity Date;
(F) Under the terms of the Credit Leases, the lessee is not
permitted to assign its interest or obligations under the Credit
Lease unless such lessee remains fully liable thereunder;
(G) The mortgagee is entitled to notice of any event of default
from the tenant under Credit Leases;
(H) Each tenant under a Credit Lease is required to make all
rental payments directly to the mortgagee, its successors and assigns
under the related Credit Lease Loan;
(I) Each Credit Lease Loan provides that the related Credit
Lease cannot be modified without the consent of the mortgagees under
the related Credit Lease Loan;
(J) For each Credit Lease Loan under which a Credit Lease may
be terminated upon the occurrence of a casualty or condemnation, a
lease enhancement insurance policy has been obtained that requires
upon such termination the payment in full of: (a) the principal
balance of the loan and (b) all accrued and unpaid interest on the
Mortgage Loan. Under the Credit Lease for each Credit Lease Loan,
upon the occurrence of a casualty or condemnation, the tenant has no
right of rent abatement, except to the extent of coverage provided by
the related lease enhancement insurance policy;
(K) The obligations of the lessee under each Credit Lease are
not affected by reason of any damage to or destruction of any portion
of the leased property; any taking of the leased property or any part
thereof by condemnation or otherwise; or any prohibition, limitation,
interruption, cessation, restriction, prevention or interference of
the tenant's use, occupancy or enjoyment of the leased property;
(L) The terms of any guaranty of the payment and performance
obligations of the tenant under any Credit Lease are unconditional
and provide for guaranty of payment and not of collection;
(M) The landlord does not have any monetary obligations under
the Credit Lease, except for the delivery of possession of the leased
property, and every monetary obligation associated with managing,
owning, developing and operating the leased property, including, but
not limited to, the costs associated with utilities, taxes,
insurance, maintenance and repairs, is an obligation of lessee;
(N) The landlord has not made any representation or warranty
under the Credit Lease that would impose any monetary obligation upon
landlord or result in the termination of the Credit Lease;
(O) The lessee cannot terminate the Credit Lease for any
reason, prior to the payment in full of the related Credit Lease
Loan;
(P) The lessee has agreed to indemnify the landlord against
any claims of any nature;
(Q) Each Credit Lease Loan that will not be fully amortized by
lease expiration has a noncancellable residual value insurance policy
for which the premium has been paid in full;
(R) The lease enhancement or residual value insurance policy in
effect for each Credit Lease Loan has been paid in full as of the
policy effective date and the policy cannot be terminated prior to
the termination date, which is the date upon which the outstanding
principal balance of the loan is reduced to zero. The policy
effective date for each loan is prior to Securitization closing date.
The policy cannot be amended without the prior written consent of the
trustee; and
(S) The insured amount is what the provider will pay to the
loss payee upon notification of a claim and is equal to or greater
than the outstanding principal balance of the note at the time the
claim is made plus all accrued interest. The lender and its assigns
are designated as the loss payee. All claims proceeds are payable to
the loss payee. Payment under the loan insurance policy will be made
within 3 business days.
It is understood and agreed that the representations and warranties set forth in
this Exhibit C shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser,
and its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
<PAGE>
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
OF SELLER REGARDING THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations and
warranties contained in the corresponding paragraph in Exhibit C:
(xiii) Insurance:
---------
Loan No. 1 the representation is true and accurate except that the
mortgage requires business interruption insurance in an amount
not less than (i) twelve months from the date of loss and
continuing until the property is restored and (ii) twelve
months from the date the property is repaired or replaced and
operations are restored.
Loan No. 16 (Saks - Stratford Square) -this is a credit tenant lease
transaction, therefore the tenant is directly responsible
for maintaining insurance under the lease. Borrower is
authorized to maintain insurance if lessee does not
maintain such insurance. All insurance proceeds not
required to be disbursed for repair and restoration shall
be paid to the Lessee. The mortgage is silent as to the
ratings required of the insurer.
(xiv) Environmental Condition
-----------------------
Loan Nos. 2, 9, 10, 14, 16, 19, 30 - the representation is true and
accurate except that the Phase I environmental report was
conducted more than 15 months prior to the Closing Date.
(xix) Whole Loan:
----------
Loan No. 1 (Crowne Plaza) - the loan has a two-note mortgage loan
structure. Loan A will be included in the Trust. Loan B
has been sold.
Loan No. 2 (Alliance TP Portfolio) - the loan has been amended to
create a two-note mortgage loan structure. Loan A will be
included in the Trust. Loan B will be retained by GACC.
Loan No. 3 (One Crystal Park) - the loan is being amended to create a
two-note mortgage loan structure. Loan A will be included
in the Trust. Loan B is being retained by GACC.
<PAGE>
(xxxvi)(f) and (h) Leasehold Estate:
----------------
Loan No. 1 (Crowne Plaza) - the representation in subsection f is true
and accurate except that two of the three ground leases
relating to the Crowne Plaza property do not require that
notice to the mortgagee be sent by certified mail, return
receipt requested. With respect to subsection h, one of
the ground leases provides that insurance proceeds shall be
applied to restoration (with the mortgagee acting as the
"Depository") unless the total amount of the restoration
exceeds the amount actually available therefor by
$7,500,000 (note that the loan documents require insurance
for the full replacement cost). If such differential
exceeds $7,500,000, the mortgagee can elect to apply the
proceeds to the mortgage loan or to restore the property.
Any application of proceeds to the mortgage loan is
subject, however, to a payment to the lessor of an amount
equal to $16,000,000.
(xliii) Defeasance Provisions:
---------------------
Loan No. 41 (Wilton Plaza) - the representation is true and accurate
except that defeasance is permitted the earlier of (a) two
years after the Start-Up Date or June 12, 1999 (one year
after the closing date).
(xlvii) Non-Recourse Exceptions:
-----------------------
Loan No. 2 (Alliance TP Portfolio) - (i) neither an entity other than
the Borrower or an individual has agreed to be liable for
losses relating to fraud by the Borrower or the
misapplication of rents, insurance proceeds or condemnation
proceeds, and (ii) neither an entity nor individual other
than the Borrower has agreed to be liable for losses
relating to a breach of the environmental covenants
contained in the Mortgage Loan.
Loan Nos. 14 and 19 - the representation is true and accurate except that
neither the Borrower nor an entity (or individual) other than
the Borrower have agreed to be liable for losses relating to
fraud by the Borrower or the misapplication of rents,
insurance proceeds or condemnation proceeds.
(lx) Size of Mortgage Loans:
----------------------
Loan No. 1 (Crowne Plaza) - the Crowne Plaza loan represents 10.20% of
the outstanding principal amount of the mortgage loans.
Loan No. 2 (Alliance Portfolio) - the Alliance Portfolio loan
represents 6.68% of the outstanding principal amount of the
mortgage loans.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of German American Capital Corporation
-------------------------------------------------------------
I, ______________________, a ______________________ of German
American Capital Corporation (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing
under the laws of the State of Maryland.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated September 1, 2000 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2000.
By:____________________________________
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected
or appointed, as the case may be, qualified and acting __________ of the Seller
and that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2000.
By:____________________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of German American Capital Corporation
In connection with the execution and delivery by German American
Capital Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated September
1, 2000 (the "Purchase Agreement"), between Deutsche Mortgage & Asset Receiving
Corporation and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this _____ day of __________, 2000.
German American Capital Corporation
By:____________________________________
Name:
Title:
<PAGE>
BILL OF SALE
BILL OF SALE, made as of the 20th of September, 2000, by German
American Capital Corporation, a Maryland corporation ("Seller"), to Deutsche
Mortgage & Asset Receiving Corporation, a Delaware corporation ("Depositor").
WHEREAS, Seller and Depositor are parties to that certain Mortgage
Loan Purchase Agreement (the "Loan Purchase Agreement"), dated as of September
1, 2000 with respect to the sale by Seller and purchase by Depositor of the
Mortgage Loans;
WHEREAS, Depositor intends to sell the Mortgage Loans to Wells Fargo
Bank Minnesota, N.A., as Trustee (the "Trustee"), in connection with the
issuance of its COMM 2000-C1 Commercial Mortgage Pass-Through Certificates,
issued under a Pooling and Servicing Agreement, dated as of September 1, 2000
(the "Pooling and Servicing Agreement"), by and among Depositor, Orix Real
Estate Capital Markets, LLC, as servicer and special servicer, the Trustee, and
LaSalle Bank National Association, as bond administrator, among other parties;
NOW THEREFORE, Seller, for and in consideration of the Mortgage Loan
Purchase Price set forth herein, and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, does hereby sell, transfer,
assign, set over and otherwise convey to Depositor, without recourse, all the
right, title and interest of Seller in and to the proceeds of any related title,
hazard, or other insurance policies and any escrow, reserve or other comparable
accounts related to the Mortgage Loans identified on the Mortgage Loan Schedule
to the Loan Purchase Agreement.
The Mortgage Loan Purchase Price shall consist of Depositor
delivering to Seller, cash in the amount of $427,188,517.24, representing the
Mortgage Loan Purchase Price.
Seller hereby represents and warrants to Depositor, as of the date
above written, that each of the representations and warranties set forth in
Section 4 of the Loan Purchase Agreement is true and correct.
Seller hereby acknowledges receipt of the Mortgage Loan Purchase
Price, which sum represents payment in full of the purchase price for all of
Seller's right, title and interest in and to Mortgage Loans having an aggregate
unpaid principal balance as of the Cut-off Date of $419,980,474 together with
related Mortgage Loan Documents, and all of Seller's right, title and interest
in and to all insurance coverage, with respect to the Mortgage Loans (and all
proceeds thereof) and Seller's interest in any Mortgaged Property that secures a
Mortgage Loan but that has been acquired by foreclosure or deed in lieu of
foreclosure (collectively, the "Mortgage Assets.")
Depositor represents and warrants to Seller, as of the date above
written, that each of the representations and warranties set forth in Section 5
of the Loan Purchase Agreement is true and correct.
Depositor hereby acknowledges receipt from Seller of (i) the
Mortgage Loans identified on Exhibit A to the Loan Purchase Agreement and (ii)
the Mortgage Assets.
Nothing in this Bill of Sale shall be construed to be a modification
of, or limitation on any provision of, the Loan Purchase Agreement, including
the representations, warranties and agreements set forth therein.
Unless otherwise defined herein, capitalized terms used in this Bill
of Sale shall have the meanings assigned to them in the Loan Purchase Agreement,
or if not defined in the Loan Purchase Agreement, the Pooling and Servicing
Agreement.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, Seller and Depositor have caused this Bill of
Sale to be executed and delivered by its respective officer thereunto duly
authorized as of the date above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Gergory B. Hartch
---------------------------------------------
Its: Authorized Signatory
By: /s/ James M. Fitzpatrick
---------------------------------------------
Its: Vice President - GACC
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ R. Douglas Donaldson
---------------------------------------------
Its: Treasurer
<PAGE>
POWER OF ATTORNEY
RECORDING REQUESTED BY:
German American Capital Corporation
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that German American Capital Corporation, as
seller under that certain Mortgage Loan Purchase Agreement dated as of September
1, 2000 (the "Mortgage Loan Purchase Agreement"), does hereby appoint ORIX REAL
ESTATE CAPITAL MARKETS, LLC, in its capacity as servicer (the "Servicer") under
the Pooling and Servicing Agreement dated as of September 1, 2000, by and among
Deutsche Mortgage & Asset Receiving Corporation, as depositor, the Servicer,
Orix Real Estate Capital Markets, LLC, as special servicer, Wells Fargo Bank
Minnesota, N.A., as trustee, LaSalle Bank National Association, as bond
administrator, and the other parties named therein, as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable the Servicer to take such action as is necessary to effect
the delivery, assignment and/or recordation of any documents and/or
instruments relating to any Mortgage Loan (as defined in the
Mortgage Loan Purchase Agreement) which has not been delivered,
assigned or recorded at the time required for enforcement as
provided in the Mortgage Loan Purchase Agreement, giving and
granting unto the Servicer full power and authority to do and
perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or
confirming all that the Servicer shall lawfully do or cause to be
done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned caused this power of attorney to be executed
as of 11th day of September, 2000.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Gergory B. Hartch
---------------------------------------------
Name: Gregory B. Hartch
Title: Authorized Signatory
By: /s/ James M. Fitzpatrick
---------------------------------------------
Name: James M. Fitzpatrick
Title: Vice President - GACC
<PAGE>
POWER OF ATTORNEY
RECORDING REQUESTED BY:
German American Capital Corporation
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that German American Capital Corporation, as
seller under that certain Mortgage Loan Purchase Agreement dated as of September
1, 2000 (the "Mortgage Loan Purchase Agreement"), does hereby appoint ORIX REAL
ESTATE CAPITAL MARKETS, LLC, in its capacity as special servicer (the "Special
Servicer") under the Pooling and Servicing Agreement dated as of September 1,
2000, by and among Deutsche Mortgage & Asset Receiving Corporation, as
depositor, Orix Real Estate Capital Markets, LLC, as servicer, the Special
Servicer, Wells Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank National
Association, as bond administrator, and the other parties named therein, as its
true and lawful attorney-in-fact for it and in its name, place, stead and for
its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable the Special Servicer to take such action as is necessary to
effect the delivery, assignment and/or recordation of any documents
and/or instruments relating to any Mortgage Loan (as defined in the
Mortgage Loan Purchase Agreement) which has not been delivered,
assigned or recorded at the time required for enforcement as
provided in the Mortgage Loan Purchase Agreement, giving and
granting unto the Special Servicer full power and authority to do
and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or
confirming all that the Special Servicer shall lawfully do or cause
to be done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned caused this power of attorney to be executed
as of 11th day of September, 2000.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Gergory B. Hartch
---------------------------------------------
Name: Gregory B. Hartch
Title: Authorized Signatory
By: /s/ James M. Fitzpatrick
---------------------------------------------
Name: James M. Fitzpatrick
Title: Vice President - GACC
<PAGE>
EXHIBIT I
MORGAN GUARANTY TRUST COMPANY OF NEW YORK PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective September 1, 2000, between Morgan Guaranty Trust Company of New
York, as seller (the "Seller"), and Deutsche Mortgage & Asset Receiving
Corporation, as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to COMM 2000-C1 Mortgage
Trust, to a trust fund (the "Trust Fund") to be formed by the Purchaser,
beneficial ownership of which will be evidenced by a series of mortgage
pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
the McGraw Hill Companies and Fitch, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust Fund will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of September 1, 2000 (the
"Pooling and Servicing Agreement"), among the Purchaser as depositor, ORIX Real
Estate Capital Markets, LLC, as servicer (in such capacity, the "Servicer") and
special servicer (in such capacity, the "Special Servicer"), LaSalle Bank
National Association, as Bond Administrator (the "Bond Administrator"), Wells
Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and the other parties
specified therein. Capitalized terms not otherwise defined herein have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc., J. P. Morgan Securities Inc. and Chase
Securities Inc. (together, the "Underwriters") pursuant to an underwriting
agreement dated September 11, 2000 (the "Underwriting Agreement"). The
Purchaser intends to sell the remaining Certificates (the "Non-Registered
Certificates") pursuant to a certificate purchase agreement dated
September 11, 2000 (the "Certificate Purchase Agreement") to the purchasers
named therein (the "Initial Purchasers").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
---------------------
The Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on September 20, 2000
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on September 1, 2000 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$249,914,693, subject to a variance of plus or minus 5%. The purchase price of
the Mortgage Loans shall be calculated pursuant to that certain Letter of
Intent, dated May 18, 2000, between, among others, the Seller and the Purchaser.
SECTION 2. Conveyance of Mortgage Loans.
----------------------------
(a) On the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof and the issuance of the
Certificates, the Seller agrees to sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule, including all interest and principal received or receivable by
the Seller on or with respect to the Mortgage Loans after the Cut-off Date,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans;
provided, however, that in the case of any Mortgage Loan with an Anticipated
Repayment Date prior to maturity (each an "ARD Loan") accruing Excess Interest
at an annual rate of greater than 2%, such ARD Loan shall be deemed to have been
modified to provide that, as of the Cut-off Date, such ARD Loan shall accrue
Excess Interest at an annual rate of no more than 2%; provided, further, that
with respect to such limitation of Excess Interest, the related borrowers shall
be third-party beneficiaries of such modification of such ARD Loan. The
Purchaser shall be entitled to (and, to the extent received by or on behalf of
the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date; provided,
however, that all scheduled payments of principal and interest accrued but not
paid or due thereon, due on or before the Cut-off Date and collected after the
Cut-off Date shall belong to the Seller, and the Purchaser or its successors or
assigns shall promptly remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain a third
party vendor reasonably satisfactory to the Directing Certificateholder to
complete the assignment and recordation of the related Loan Documents. On or
promptly following the Closing Date, the Seller shall cause such third party
vendor, to the extent possession of recorded copies of each Mortgage and the
documents described in clauses (iv), (v), (vi), (vii), (viii), (xi), (xvii) and
(xviii) of Exhibit B have been delivered to it, at the expense of the Seller,
(1) to prepare and record (a) each Assignment of Mortgage referred to in clause
(iii) of Exhibit B which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in clauses
(iv) and (v) of Exhibit B (if not otherwise included in the related Assignment
of Mortgage) which has not yet been submitted for recordation; and (2) to
prepare and file each UCC financing statement referred to in clause (xi) or
(xviii) which has not yet been submitted for filing. The Seller shall direct the
related third party vendor to promptly prepare and submit (and in no event later
than 30 Business Days following the receipt of the related documents in the case
of clause 1(a) above and 60 days following the receipt of the applicable
documents in the case of clauses 1(b) and 2 above) for recording or filing, as
the case may be, in the appropriate public recording office, each such document.
In the event that any such document is lost or returned unrecorded because of a
defect therein, the Seller, at its expense, shall promptly prepare a substitute
document for signature by the Purchaser or itself, as applicable, and thereafter
the Seller shall cause each such document to be duly recorded. The Seller shall,
promptly upon receipt of the original recorded copy (and in no event later than
five Business Days following such receipt) deliver such original to the
Custodian (in the case of each UCC, with evidence of filing thereon).
Notwithstanding anything to the contrary contained in this Section 2, in those
instances where the public recording office retains the original Mortgage,
Assignment of Mortgage or Reassignment of Assignment of Leases, Rents and
Profits, if applicable, after any has been recorded, the obligations hereunder
of the Purchaser shall be deemed to have been satisfied upon delivery to the
Custodian of a copy of such Mortgage, Assignment of Mortgage or Reassignment of
Assignment of Leases, Rents and Profits, if applicable, certified by the public
recording office to be a true and complete copy of the recorded original
thereof.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller hereby agrees that, at least five (5) Business
Days before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Note referred to in clause (i) of Exhibit B has been
delivered by the Seller with respect to each such Mortgage File.
If the Seller cannot deliver any original or certified recorded
document described in Section 2 on the Closing Date, the Seller shall use its
best efforts, promptly upon receipt thereof and in any case not later than 45
days from the Closing Date (except as described below with respect to the items
described in clauses (ii), (iv), (viii), (xi) and (xii) of Exhibit B) to deliver
such original or certified recorded documents to the Trustee (unless the Seller
is delayed in making such delivery by reason of the fact that such documents
shall not have been returned by the appropriate recording office in which case
it shall notify the Trustee in writing of such delay).
In the event Seller fails to so deliver each such Mortgage File to
the Trustee, the Purchaser and its successors and assigns shall be entitled to
pursue any rights or remedies in respect of such failure as may be available
under applicable law. If the Seller cannot deliver, or cause to be delivered, as
to any Mortgage Loan, the original or a copy of any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of Exhibit
B, with evidence of recording thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, or because such original recorded document
has been lost or returned from the recording or filing office and subsequently
lost, as the case may be, the delivery requirements of this Section 2(b) shall
be deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the Seller to be a true and complete copy of
the original thereof submitted for recording or filing, as the case may be) has
been delivered to the Trustee, and either the original of such missing document
or instrument, or a copy thereof, with evidence of recording or filing, as the
case may be, thereon, is delivered to or at the direction of the Purchaser (or
any subsequent owner of the affected Mortgage Loan, including without limitation
the Trustee) within 90 days of the Closing Date (or within such longer period
after the Closing Date as the Purchaser (or such subsequent owner) may consent
to, which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a commitment for title insurance "marked-up"
at the closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
has been received by the Seller and the issuance of the Certificates, the
Trustee shall be authorized to release to the Purchaser or its designee all of
the Mortgage Files in the Trustee's possession relating to the Mortgage Loans.
The Purchaser and the Seller have delivered, contemporaneously with
their execution of this Agreement, a power of attorney to each of the Servicer
and the Special Servicer at the direction of the Directing Certificateholder or
its assignees, to take such other action as is necessary to effect the delivery,
assignment and/or recordation of any documents and/or instruments relating to
any Mortgage Loan which have not been delivered, assigned or recorded at the
time required for enforcement by the Trust Fund. The Seller will be required to
effect at its expense the assignment and recordation of its Loan Documents until
the assignment and recordation of all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and shall thereafter deliver the substitute or corrected
document to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee) for recording
or filing, as appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under
its control) relating to the Mortgage Loans that are not required to be a part
of a Mortgage File in accordance with Exhibit B but that are reasonably required
to service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller or its agent shall deliver a copy of
the related Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale, including for accounting purposes.
(f) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loans and all rights and remedies under this Agreement to
the Trustee, including, without limitation, all rights and remedies as may be
available under applicable law to the Purchaser in the event of a breach of a
representation or warranty pursuant to Section 4(a) hereof or in the event of a
Defect; provided, that the Trustee shall be a third-party beneficiary of this
Agreement and shall be entitled to enforce any obligations of the Seller
hereunder in connection with a breach of any such representation or warranty or
a Defect as if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
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The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
-------------------------------------------------------
(a) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of New York, and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by the
Seller, will not violate the Seller'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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with, the
terms of this Agreement will not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations under
this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Except with respect to J. P. Morgan Securities Inc., an
affiliate, acting as Underwriter and Initial Purchaser, neither the Seller
nor anyone acting on its behalf has (A) offered, pledged, sold, disposed of
or otherwise transferred any Certificate, any interest in any Certificate
or any other similar security to any person in any manner, (B) solicited
any offer to buy or to accept a pledge, disposition or other transfer of
any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or any other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of any
of the acts described in clauses (A) through (E) above) would constitute or
result in a violation of the Securities Act or any state securities law
relating to or in connection with the issuance of the Certificates or
require registration or qualification pursuant to the Securities Act or any
state securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Seller will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth
in the foregoing sentence with respect to any of the Certificates or
interests therein. For purposes of this paragraph 4(b)(viii), the term
"similar security" shall be deemed to include, without limitation, any
security evidencing or, upon issuance, that would have evidenced an
interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-4 through A-7, inclusive, of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (as defined in
Section 9) under the headings "Summary of Prospectus Supplement--The
Mortgage Pool", "Risk Factors" and "Description of the Mortgage Pool", set
forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the Seller
with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) the filing or recording of financing
statements, instruments of assignment and other similar documents necessary
in connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties made pursuant to and set forth in
subsection (b) above which materially and adversely affects the interests of the
Purchaser or a breach of any of the representations and warranties made pursuant
to subsection (a) above and set forth in Exhibit C which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates), the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
----------------------------------------------------------
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance of, and compliance with, the terms of this Agreement by
the Purchaser, will not violate the Purchaser'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 Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser 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 Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with, the
terms of this Agreement will not constitute a violation of, any law, any
judgment, 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 Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters, the
Initial Purchasers and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
-----------
(a) Upon discovery by any of the parties hereto of any Defect (as
defined in the Pooling and Servicing Agreement) in respect of the Mortgage File
for any Mortgage Loan or a breach of any representation or warranty made
pursuant to Section 4(a) and set forth in Exhibit C, which Defect or breach, as
the case may be, materially and adversely affects the value of any Mortgage Loan
(it being understood and agreed that the non-delivery of any of the items
identified in clauses (i), (ii) or (iii) of Exhibit B with respect to a Mortgage
Loan shall constitute a Defect that materially and adversely affects the value
of such Mortgage Loan) or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee, the
Servicer, the Special Servicer and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Purchaser, the Bond Administrator, the Seller, the Directing Certificateholder,
the Custodian, the Servicer, the Special Servicer (in the case of a Specially
Serviced Mortgage Loan) or the Trustee, as applicable. Within 90 days of receipt
of notice by the Seller, from the Servicer, the Special Servicer, the Trustee,
the Custodian or the Bond Administrator, of such breach or Defect, the Seller
shall cure such Defect or breach, as the case may be, in all material respects
or repurchase the affected Mortgage Loan from the then owner(s) thereof at the
applicable Repurchase Price (as defined in the Pooling and Servicing Agreement
as in effect on the Closing Date) on a whole loan, servicing released basis, by
payment of such Repurchase Price by wire transfer of immediately available funds
to the account designated by such owner(s); provided, however, that in the event
that such breach is capable of being cured, as determined by the Servicer and
the Special Servicer, but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such breach, the Seller
will have up to an additional 90 days to complete such cure as provided in the
Pooling and Servicing Agreement (as in effect on the Closing Date); provided,
further, that with respect to such additional period, the Seller is required to
deliver an officer's certificate to the Trustee, the Bond Administrator, the
Servicer and the Special Servicer setting forth the reason such breach is not
capable of being cured within the initial 90-day period and what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such breach will be cured within the additional period;
and provided, further, that in the event the Seller fails to cure such breach,
the Repurchase Price shall include interest on any Advances made in respect of
the related Mortgage Loan; provided, however, that in lieu of effecting any such
repurchase, within two years of the Startup Day, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement. The Seller will give written
notice to the Purchaser, the Bond Administrator and the Servicer of such
deposit, as directed by the Trustee. Conveyance of such Mortgage Loans shall be
made free and clear of all Liens and encumbrances created or suffered by the
Purchaser or any subsequent holder. Upon any substitution, the Qualifying
Substitute Mortgage Loan shall be subject to the terms of the Pooling and
Servicing Agreement in all respects. In the event that (x) any cure or
repurchase obligation under this Section arises by reason of the failure of a
Mortgage Loan to constitute a Qualified Mortgage and the Seller elects to
substitute a Qualifying Substitute Mortgage Loan in lieu of such cure or
repurchase, and (y) the Directing Certificateholder and, in the case of a
Mortgage Loan included in a Loan Pair, the Companion Holder (or an Operating
Advisor acting on its behalf), fail to consent to such substitution, then such
Mortgage Loan (and any related Cross-Collateralized Loan) must be repurchased by
the Seller.
In addition to the rights of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates) pursuant to this Section 6, if the Seller cannot deliver, or cause
to be delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in Section 2 and as listed in Exhibit B
(and provide evidence of recordation and/or assignment where applicable), the
Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates) may require the Seller to establish
a cash reserve (or provide a letter of credit) in the amount of 20% of the
principal balance of such Mortgage Loan for which any documents and/or
instruments specified in clauses (i) through (vii), (ix), (xi) and (xiv) through
(xvi) of Exhibit B remain missing, uncorrected, unrecorded or unassigned 18
months after the Closing Date. Amounts in such reserve related to a particular
Mortgage Loan shall either be released to the Seller upon delivery of the
documents and/or instruments specified in such clauses or when such Mortgage
Loan is paid in full, or if such Mortgage Loan is required to be repurchased as
provided in this Section, such amounts shall be credited against the Repurchase
Price for such Mortgage Loan.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Servicer, the Special Servicer, Trustee or Bond
Administrator to notify the Seller of a Defect or breach shall not constitute a
waiver of any cure or repurchase obligation.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Repurchase
Price by payment of such Repurchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 6, the then owner(s) thereof shall
tender promptly or cause to be tendered promptly to the Seller, upon delivery of
a receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the
sole remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the Certificates)
respecting any Defect in a Mortgage File or any breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, or in
connection with the circumstances described in Section 6(b). If the Seller
defaults on its obligations to cure, to repurchase, or to substitute for, any
Mortgage Loan in accordance with Section 6(a) or Section 6(b) or disputes its
obligation to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with either such subsection, the Purchaser or its successors and
assigns may take such action as is appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
appropriate proceedings. To the extent the Purchaser prevails in such
proceeding, the Seller shall reimburse the Purchaser for all necessary and
reasonable costs and expenses incurred in connection with the enforcement of
such obligation of the Seller to cure, to repurchase, or to substitute for, any
Mortgage Loan in accordance with Section 6(a) or Section 6(b).
SECTION 7. Closing.
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The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, New York 10038 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and the
Aggregate Cut-off Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
-----------------
The Closing Documents shall consist of the following:
(a) This Agreement and a bill of sale duly executed and delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely, attaching thereto as exhibits the organizational documents of the
Seller;
(c) A certificate of existence regarding the Seller from the State
of New York Banking Department, dated not earlier than 30 days prior to the
Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) Written opinions of counsel for the Seller, in the form
reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser and each Underwriter as
an addressee; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; but only if and
to the extent that (i) any such untrue statement or alleged untrue statement is
with respect to information regarding the Mortgage Loans contained in the Loan
Detail or, to the extent consistent therewith, the Diskette; or (ii) any such
untrue statement or alleged untrue statement or omission or alleged omission is
with respect to information regarding the Seller or the Mortgage Loans contained
in the Prospectus Supplement or the Memorandum under the headings "Summary of
Prospectus Supplement--The Mortgage Pool", "Risk Factors" or "Description of the
Mortgage Pool" or contained on Annex A to the Prospectus Supplement (exclusive
of the Loan Detail), and such information does not represent a restatement or
aggregation of information contained in the Loan Detail; or (iii) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the Seller
set forth in or made pursuant to Section 4; provided, that the indemnification
provided by this Section 9 shall not apply to the extent that such untrue
statement of a material fact or omission of a material fact necessary to make
the statements made, in light of the circumstances in which they were made, not
misleading, was made as a result of an error in the manipulation of, or
calculations based upon, the Loan Detail. This indemnity agreement will be in
addition to any liability which the Seller may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean
the registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated August 11,
2000, as supplemented by the prospectus supplement dated September 11, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated September 11, 2000, relating
to the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "Indemnified Party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "Indemnifying Party") under this
Section 9, notify the Indemnifying Party in writing of the commencement thereof;
but the omission to notify the Indemnifying Party will not relieve it from any
liability that it may have to any Indemnified Party otherwise than under this
Section 9. In case any such action is brought against any Indemnified Party and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified Party;
provided, however, that if the defendants in any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified Party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other Indemnified Parties that are different from
or additional to those available to the Indemnifying Party, the Indemnified
Party or Indemnified Parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such Indemnified Party or Indemnified Parties. Upon receipt
of notice from the Indemnifying Party to such Indemnified Party of its election
to assume the defense of such action and approval by the Indemnified Party of
counsel, which approval shall not be unreasonably withheld, the Indemnifying
Party will not be liable for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof, unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser and the Indemnifying Party, representing all the Indemnified Parties
under Section 9(a) and Section 1 of the Underwriting Agreement who are parties
to such action), (ii) the Indemnifying Party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of commencement of the action or
(iii) the Indemnifying Party has authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii). The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party, but
only to the extent provided in paragraph (a) of this Section 9, from and against
any loss or liability by reason of such settlement or judgment. If the
Indemnifying Party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the Indemnified Party, which
consent shall not be unreasonably withheld or delayed, or, if such settlement
provides for release of the Indemnified Party in connection with all matters
relating to the proceeding which has been asserted against the Indemnified Party
in such proceeding by the other parties to such settlement, without the consent
of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Indemnified Party, and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10. Costs.
-----
Costs relating to the transactions contemplated hereby shall be
borne by the respective parties hereto pursuant to that certain Letter of
Intent, dated May 18, 2000, between, among others, the Seller and the Purchaser.
SECTION 11. Notices.
-------
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by certified mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Deutsche Mortgage & Asset Receiving
Corporation, One International Place, Room 520, Boston, Massachusetts 02110,
Attention: R. Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to
Anna Glick, Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New
York 10038, facsimile no. (212) 504-6666, or such other address or facsimile
number as may hereafter be furnished to the Seller in writing by the Purchaser;
and if to the Seller, addressed to Morgan Guaranty Trust Company of New York, 60
Wall Street, New York, New York 10038, Attention: Nancy Alto, facsimile no.
(212) 648-5691, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
-------------------------
Each of the officers, directors and controlling persons referred to
in Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
--------------------------
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. Further Assurances.
------------------
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
----------------------
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller and the Purchaser, and their
permitted successors and assigns, and the indemnified parties referred to in
Section 9.
SECTION 19. Amendments.
----------
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
SECTION 20. No Recourse.
-----------
No recourse under any obligation, covenant or agreement of the
Purchaser contained in this Agreement shall be had against J.H. Management
Corporation ("JHM"), JH Holding Corporation ("JHHC") or any incorporator,
stockholder, officer, director or employee of the Purchaser, JHM or JHHC, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise, it being expressly agreed and understood that this
Agreement is solely a corporate obligation of the Purchaser, and that no
personal liability whatever shall attach to or be incurred by the incorporators,
stockholders, officers, directors or employees of the Purchaser, JHM or JHHC, or
any of them under or by reason of any of the obligations, covenants or
agreements of the Purchaser contained in this Agreement, or implied therefrom,
and that any and all personal liability for breaches by the Purchaser of any of
such obligations, covenants or agreements either at common law or at equity, or
by statute or constitution, of JHM or JHHC and every such incorporator,
stockholder, officer, director or employee is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By: /s/ Clive Bull
--------------------------------------
Name: Clive Bull
Title: Vice President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Rosa Oliveri
--------------------------------------
Name: Rosa Oliveri
Title: Vice President
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of the
related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date and that the
Mortgage Loan is a fixed rate Mortgage Loan;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the (A) Maturity Date for each Mortgage Loan, and (B) with
respect to each Mortgage Loan with an Anticipated Repayment Date, the
Anticipated Repayment Date;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date,
following the Cut-off Date;
(i) whether such Mortgage Loan has an Anticipated Repayment Date;
(j) the Primary Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan; and
(l) whether such Mortgage Loan has a hard lock-box or a springing
lock-box.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Note, endorsed by the most recent endorsee prior to
the Trustee or, if none, by the Originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the
order of Wells Fargo Bank Minnesota, N.A., as trustee for the registered
holders of COMM 2000-C1, Mortgage Pass-Through Certificates, without
recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee
or, if none, by the Originator, either in blank or in favor of the Trustee
(in such capacity);
(iv) the original or a copy of the related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage)
and, if applicable, the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the Originator of the
Mortgage Loan to the most recent assignee of record thereof prior to the
Trustee, if any, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage),
in recordable form, executed by the most recent assignee of record thereof
prior to the Trustee or, if none, by the Originator, either in blank or in
favor of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in clause
(iii) above;
(vi) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
Originator, either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if appropriate, in those instances where the terms or provisions of the
Mortgage, Note or any related security document have been modified or the
Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued as of the date of the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued with
or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property or a "marked up
commitment to insure";
(x) the original or a copy of any guaranty of the obligations of the
mortgagor under the Mortgage Loan together with (A) if applicable, the
original or copies of any intervening assignments of such guaranty showing
a complete chain of assignment from the Originator of the Mortgage Loan to
the most recent assignee thereof prior to the Trustee, if any, and (B) an
original assignment of such guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the Originator;
(xi) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the Originator of
the Mortgage Loan (and each assignee of record prior to the Trustee) in and
to the personalty of the Mortgagor at the Mortgaged Property (in each case
with evidence of filing thereon) and which were in the possession of the
Seller (or its agent) at the time the Mortgage Files were delivered to the
Custodian, together with original UCC-2 or UCC-3 financing statements
showing a complete chain of assignment from the secured party named in such
UCC-1 financing statement to the Trustee and (B) if any such security
interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a UCC
financing statement executed by the most recent assignee of record prior to
the Trustee or, if none, by the Originator, evidencing the transfer of such
security interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Note or other document or instrument referred to above was signed
on behalf of the Mortgagor pursuant to such power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(xv) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage Loans, if
any;
(xvi) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xvii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and
the assignment thereof to the Trustee;
(xviii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof;
with respect to the Reserve Accounts, 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 Reserve Accounts, Cash Collateral Accounts and Lock-Box
Accounts and all funds contained therein (and UCC-3 financing statements
assigning such security interest to the Trustee on behalf of the
Certificateholders); and
(xix) any other material written agreements related to the Mortgage
Loan;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or 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. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and warrants,
as of the date hereinbelow specified or, if no such date is specified, as of the
Closing Date, except as set forth on Schedule C-1 hereto as follows (as used
herein, "to Seller's knowledge" or words of similar import means the knowledge
of such entity without investigation or inquiry relating to this transaction):
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than the right of a subservicer to directly service such Mortgage Loan as shown
on the Mortgage Loan Schedule). Such transfer validly assigns ownership of such
Mortgage Loan to the Purchaser free and clear of any pledge, lien, encumbrance
or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision of
the Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date. The Seller has not taken any
action that would cause the representations and warranties made by the related
Borrower under the Mortgage Loan not to be true and correct in any material
respect. The Seller has no knowledge that the material representations and
warranties made by such Borrower under the Mortgage Loan are not true and
correct in any material respect. Each Mortgage Loan is properly endorsed as
provided in the Pooling and Servicing Agreement, and such endorsement is
genuine.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. The Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest (subject only to any
prior purchase money security interests), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a UCC
financing statement, in all personal property owned by the Borrower that is used
in, and is reasonably necessary to, the operation of the related Mortgaged
Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. Neither the Seller
nor, to the Seller's knowledge, any holder of such Mortgage Loan, has by act or
omission, done anything that would materially impair the coverage under such
Title Policy and Seller has no knowledge of any circumstances that would impair
such coverage. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer that issued such Title Policy is qualified to do business in the state
in which the related Mortgaged Property is located. The Mortgage has been
submitted for recordation in the applicable jurisdiction, the full amount of the
Mortgage has been recorded on the related Mortgaged Property and all applicable
mortgage recording taxes have been paid.
(vii) No Waivers by Seller of Material Defaults. The Seller, and to
its knowledge, any prior holder of such Mortgage Loan, has not waived any
material default, breach, violation or event of acceleration existing under the
related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, right of rescission, defense or counterclaim to such Mortgage Loan or
the related Mortgage security agreements, Assignment of Leases, Rents and
Profits.
(ix) Condition of Property; Condemnation. The related Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage that would
materially and adversely affect its value as security for such Mortgage Loan.
The Seller has no knowledge of any pending or threatened proceeding for the
condemnation of all or any material portion of the related Mortgaged Property.
(x) Compliance with Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied in all material respects with all applicable laws
relating to the origination, funding and terms of such Mortgage Loan (including
usury laws) in effect at its date of origination unless the failure to comply
with such laws would not have a material adverse effect on the related Mortgage
Loan.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of
such Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and excluding provisions
relating to default interest, yield maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured against loss by hazards of extended coverage in an amount
(subject to a customary deductible) at least equal to the lesser of (1) the
outstanding principal balance of such Mortgage Loan or (2) 100% of the full
replacement cost of the improvements located on such Mortgaged Property. If any
portion of the improvements on the related Mortgaged Property was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, and flood insurance was available, a flood insurance policy meeting any
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable actual cash
value of such Mortgaged Property, (3) the maximum amount of insurance available
under the National Flood Insurance Act of 1968, as amended, and (4) 100% of the
replacement cost of the improvements located on such Mortgaged Property. The
Mortgage requires the Borrower to maintain such insurance in respect of the
Mortgaged Property in addition to comprehensive general liability insurance in
amounts customarily required by prudent institutional lenders for similar
properties, and at least twelve months rental or business interruption insurance
for Mortgaged Properties other than hotels, and eighteen months business
interruption insurance for hotel-related properties. All such insurance required
by the Mortgage to be maintained is in full force and effect and names the
Originator, the Seller or their respective successors or assigns as mortgagee,
loss payee or additional insured. All premiums on such insurance policies
required to be paid as of the date hereof have been paid. Each such insurance
policy requires 10-day prior written notice to the holder of the Mortgage of
termination or cancellation, and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. As of the date of
closing of the applicable Mortgage Loan and, to the Seller's knowledge, as of
the Closing Date, each insurer under such insurance policies has a claims paying
rating of "BBB" or better by at least one rating agency or A-/VII or higher by
A.M. Best's Key Rating Guide and is qualified to do business in the jurisdiction
where the related Mortgaged Property is located. Each Mortgage Loan obligates
the related Borrower to maintain all such insurance, and upon such Borrower's
failure to do so, authorizes the mortgagee to maintain such insurance at the
Borrower's cost and expense and to seek reimbursement therefor from such
Borrower.
(xiv) Environmental Condition. The Borrower with respect to each
Mortgage Loan has represented and warranted that except as set forth in certain
environmental reports included in the related loan documents, and to the best of
its knowledge, it has not used, caused or permitted to exist, and will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials; the related Borrower or an affiliate thereof
agrees to indemnify, defend and hold the mortgagee and its successors and
assigns harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted against,
any such party resulting from a breach of certain representations and warranties
or covenants given by the Borrower in connection with such Mortgage Loan. A
Phase I environmental report, and with respect to certain Mortgage Loans a Phase
II environmental report, was conducted by a reputable environmental engineer in
connection with such Mortgage Loan within 15 months prior to the Closing Date.
The Seller, having made no independent inquiry other than reviewing the
report(s), has no knowledge of any material and adverse environmental conditions
or circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). Such environmental report reveals no known, and the Seller
has no knowledge of, circumstances or conditions with respect to the Mortgaged
Property that would (i) constitute or result in a material violation of any
environmental laws, (ii) require any expenditure material in relation to the
principal balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any environmental laws for which adequate sums were not
reserved in connection with the origination of the Mortgage Loan, or (iii)
require substantial cleanup, remedial action or other material response under
any environmental laws in excess of any escrow reserved at the origination of
the Mortgage Loan. The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Borrower to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund or any Mortgage Loan not identified on the
Mortgage Loan Schedule as so cross-collateralized.
(xvi) Waivers and Modifications. The terms of the related Mortgage
and the Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in a written instrument included in
the related Mortgage File and which is duly recorded to the extent required to
perfect, maintain or continue the validity and priority of the Mortgage, Note
and related documents.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Borrower's Interest in Mortgaged Property. Except with
respect to Mortgage Loans the Borrower of which is a lessee under a ground lease
of a Mortgaged Property or a combination of a ground lease and a fee simple
interest (and so identified in the Mortgage Loan Schedule), the interest of the
related Borrower in the related Mortgaged Property consists of a fee simple
estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage
referred to in clause (iii) of Exhibit B constitutes the legal, valid and
binding assignment of such Mortgage from the relevant assignor to the Trustee.
The Assignment of Leases, Rents and Profits set forth in the Mortgage or
separate from the related Mortgage and related to and delivered in connection
with each Mortgage Loan establishes and creates a valid, subsisting and, subject
only to Permitted Encumbrances, enforceable first priority lien and first
priority security interest in the related Borrower's interest in all leases,
rents, subleases, licenses or other agreements, to the extent permitted by law,
pursuant to which any person is entitled to occupy, use or possess all or any
portion of the real property subject to the related Mortgage, and each assignor
thereunder has the full right to assign the same, to the extent permitted by
law. The related assignment of any Assignment of Leases, Rents and Profits and
any related security agreement, UCC financing statement or similar agreement or
instrument, not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment of Leases,
Rents and Profits or other agreement or instrument. The related Mortgage or such
Assignment of Leases provides for the appointment of a receiver for rents, or
allows the lender to enter into possession to collect rents or provides for
rents to be paid directly to the mortgagee in the event of a default.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan
that are, as of the Closing Date, required to be deposited with the mortgagee or
its agent have been so deposited. All such escrows have been conveyed to Orix
Real Estate Capital Markets, LLC, as servicer or the related subservicer for
such Mortgage Loan. Any and all requirements under each Mortgage Loan as to
completion of any improvements and as to disbursement of any funds escrowed for
such purpose, which requirements were to have been complied with on or before
the Closing Date have been complied with, or funds so escrowed have not been
released.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based
on surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), (a) as of the date of such origination, no improvement that
was included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent and (b) as of the date of origination, there were no material
encroachments of any part of the buildings on such Mortgaged Property over
easements (in each case, unless affirmatively covered by the Title Policy
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent. To
the Seller's knowledge, based upon opinions of counsel, an endorsement to such
Title Policy and/or other due diligence customarily performed by the Seller, the
improvements located on or forming part of such Mortgaged Property comply in all
material respects with applicable zoning laws and ordinances (except to the
extent that they may constitute legal nonconforming uses) and any immaterial
violation does not adversely affect the value of such Mortgaged Property.
(xxiv) No Material Default. (A) To the Seller's knowledge, there
exists no material default, breach or event of acceleration under the related
Mortgage, Note, Assignment of Leases and Rents, security agreement or guaranty
and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. (A) In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected (either directly by the Seller, by its correspondent or by a third
party) the Mortgaged Property and (B) Seller has inspected or caused to be
inspected each related Mortgaged Property within the 12 months preceding the
Cut-off Date.
(xxvi) No Equity Participation or Contingent Interest. Except for
any related Excess Interest, the Mortgage Loan contains no equity participation
by the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property (other than a tenant required to make its lease payments
directly to the holder of the related Mortgage Loan), directly or indirectly,
for the payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge as of the
Closing Date, based on due diligence customarily performed in the origination of
comparable mortgage loans by the Seller as of the origination date, (i) the
related Borrower or operator of the related Mortgaged Property was in possession
of all material licenses, permits and authorizations required by applicable laws
for the ownership, occupancy and operation of the related Mortgaged Property as
it was then operated, and such licenses, permits and authorizations are in full
force and effect and, (ii) if a related Mortgaged Property is improved by a
hotel, the most recent inspection or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and authorizations did
not cite such Mortgaged Property for material violations that had not been cured
or as to which a plan of correction had not been submitted to and accepted by
such governmental authorities. To the extent required under applicable law as of
the date of origination and the Closing Date and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it originated and held
the Mortgage Loan.
(xxix) Servicing. The origination, servicing and collection
practices used by Seller and its designees with respect to the Mortgage Loan
have been in all material respects legal, proper and prudent and have met
industry standards for servicing of commercial mortgage loans. No fraud with
respect to such Mortgage Loan has taken place on the part of Seller or, to
Seller's knowledge, on the part of any originator or Borrower in connection with
the origination of such Mortgage Loan. No other person has been granted or
conveyed the right to service the Mortgage Loans or receive any consideration in
connection therewith (other than the subservicers listed on the Mortgage Loan
Schedule).
(xxx) Customary Remedies. The related Mortgage or Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxi) Conversion. The indebtedness evidenced by a Mortgage Loan is
not convertible to an ownership interest in the related Mortgaged Property or
the related Borrower.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied
either to restore or repair the Mortgaged Property, or to repay the principal of
the Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the
related Borrower at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at least equal
to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (X) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (Y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (1) and (2) of this
paragraph (xxxiii) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans; or (B) substantially all the proceeds of such Mortgage Loan were
used to acquire, improve or protect the real property which served as the only
security for such Mortgage Loan (other than a recourse feature or other third
party credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). Any prepayment premium and yield maintenance charges
applicable to the Mortgage Loan constitutes "customary prepayment penalties"
within the meaning of Treasury Regulation Section 1.860G-1(b)(2).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's knowledge, there are no pending
actions, suits or proceedings or governmental investigations by or before any
court or governmental authority against or affecting the related Borrower or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Borrower to pay principal, interest or
any other amounts due under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the
related Borrower's fee simple estate in real estate or, if the related Mortgage
Loan is secured in whole or in part by the interest of a Borrower as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Borrower's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related Mortgage;
does not restrict the use of the related Mortgaged Property by the lessee
or its successors and assigns in a manner that would materially adversely
affect the security provided by the related Mortgage; and, to the knowledge
of the Seller, there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that are
a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the ground lessor's related fee interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but (except in
the case where such consent cannot be unreasonably withheld) without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor (except in the case where such consent cannot be unreasonably
withheld);
(d) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease and Seller has given the
lessor proper notice of the Mortgage lien;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any material
default by the lessee to the mortgagee, provided that the mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease, and such Ground Lease, or an estoppel
letter or other agreement, further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee unless a
copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice by certified mail,
return receipt requested of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease has an original term which extends not less
than ten years beyond the Stated Maturity Date of the related Mortgage
Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued interest
thereon and any insurance proceeds in respect of a total or substantially
total loss or taking may be applied either to payment of outstanding
principal and interest on the Mortgage Loan (except as otherwise provided
by law) or to rebuilding of the Mortgaged Property;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the related
Mortgage Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted, in
the absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of any subtenant of the lessee, or in any manner, which
would materially adversely affect the security provided by the related
Mortgage; and
(j) Such Ground Lease requires the lessor to enter into a new lease
with the Seller or its successors or assigns in the event of a termination
of the Ground Lease by reason of a default by the Borrower under the Ground
Lease, including rejection of the Ground Lease in a bankruptcy proceeding.
(k) Such Ground Lease may not be amended, modified or, except in the
case of a default, cancelled or terminated without the prior written
consent of the holder of the Mortgage Loan, and any such action without
such consent is not binding on such holder, including any increase in the
amount of rent payable by the lessee thereunder during the term of the
Mortgage Loan.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust,
a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release
of a portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements and the payment of a release
price or (c) a defeasance is affected in accordance with the terms of the
Mortgage Loan Documents, the related Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
(xxxix) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof. To Seller's knowledge, the related Mortgaged Property is not
encumbered by any debt, including subordinate or pari passu Mortgages or liens,
preferred equity interests with rights and terms comparable to mezzanine debt or
mezzanine debt other than the related Mortgage Loan or another Mortgage Loan.
(xl) Due-On-Sale; Due-On-Encumbrance. Each related Mortgage or Loan
Agreement contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or Loan Agreement, the related Mortgaged Property,
or any interest therein, is directly or indirectly transferred or sold (except
for a one-time transfer), or encumbered in connection with subordinate
financing. The Mortgage requires the Borrower to pay all reasonable fees and
expenses relating to obtaining any consent and approval required pursuant
thereto.
(xli) Borrower Bankruptcy. At the origination of such Mortgage Loan,
neither the related Borrower nor any guarantor was a debtor in any pending state
of federal bankruptcy or insolvency proceeding. To the Seller's knowledge, the
Borrower is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance, or (B) permits
defeasance (i) no earlier than two years after the Closing Date (as defined in
the Pooling and Servicing Agreement, dated as of September 1, 2000), (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the
disposition of the Mortgaged Property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xliii) Defeasance Costs. If the Mortgage Loan permits defeasance,
then the mortgage loan documents related to such Mortgage Loan require (a) the
Borrower to pay all rating agency fees associated with defeasance and all other
reasonable out-of-pocket expenses associated with defeasance such as
accountant's fees and opinions of counsel, or (b) that the Borrower provide a
REMIC opinion, an opinion regarding the first priority perfected security
interest in the defeasance, collateral, rating agency letters certifying no
rating qualification or downgrade on any securities, and accountant
certification that all payments from the defeasance collateral are sufficient to
make monthly principal and interest payments on such Mortgage Loan through
maturity.
(xliv) Release or Substitution of Collateral. Such Mortgage Loan
does not permit the release or substitution of collateral if such release or
substitution (a) would constitute a "significant modification" of such Mortgage
Loan within the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii) thereof).
Except with respect to an unimproved parcel which was not given any value in
connection with the underwriting or appraisal of the Mortgage Loan, neither the
related Mortgage Note nor the related Mortgage requires the lender to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon full prepayment or, in the case of a partial
release, partial prepayment in an amount at least equal to the amount allocated
in the Mortgage to such portion of the Mortgaged Property.
(xlv) Satisfaction. No Mortgage has been satisfied, cancelled,
rescinded or subordinated in whole or in material part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in material part and there is no executed agreement to effect any of
the foregoing.
(xlvi) Capital Contributions. The Mortgage Loan Seller is not, and
its affiliates are not, obligated to make any capital contribution to the
related Borrower under the terms of the Mortgage Loan documents (other than any
such contribution made at the time of the origination of the Mortgage Loan).
(xlvii) Non-Recourse Exceptions. Except as listed on Schedule C-1
hereto, the Borrower and an entity (or individual(s)) other than the Borrower
have agreed to be, jointly and severally, liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by the lender or
lender's assignee's by reason of or in connection with and to the extent of (i)
any fraud by the related Borrower (ii) any breach of the environmental covenants
contained in the related Mortgage Loan, and (iii) the misapplication of rents,
insurance proceeds or condemnation proceeds.
(xlviii) Anticipated Repayment Date Loans. With respect to each
Mortgage Loan that is a treated as an Anticipated Repayment Date Loan by the
Rating Agencies:
(a) The maximum rate increase after the Anticipated Repayment Date
is not greater than 200 basis points above the initial interest rate;
(b) Such Mortgage Loan begins amortizing immediately; and does not
have an interest only period after the Cut-off Date;
(c) The Anticipated Repayment Date is not less than seven years from
the origination date for such Mortgage Loan;
(d) Such Mortgage Loan provides that from the Anticipated Repayment
Date through the maturity date for such Mortgage Loan, all excess cash flow
(net of monthly expenses reasonably related to the operation of the
Mortgaged Property, amounts due for reserves established under the Mortgage
Loan, and payments for any others expenses, including capital expenses,
related to the Mortgaged Property which are approved by mortgagee) will be
applied to repay principal due under the Mortgage Loan;
(e) Mortgagee may not exercise default remedies relating to a
default in payment of principal and interest after the Anticipated
Repayment Date until the maturity date of the Mortgage Loan if the borrower
pays scheduled principal and interest payments (at the initial rate); and
(f) no later than the related Anticipated Repayment Date, the
related Borrower is required (if it has not previously done so) to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer.
(xlix) Lock-Box Loans. With respect to each Mortgage Loan that was
treated by the Rating Agencies as having a hard lock-box account (the "Hard
Lock-Box Loans") (and which is designated as a Hard Lock-Box Loan on the
Mortgage Loan Schedule), (a) the related lock-box account was established as of
the Closing Date, (b) the related lock-box account is under the control of the
mortgagee or its designee, and (c) the tenants of the Mortgaged Property
securing such Mortgage Loan remit payments directly to such lock-box account.
(l) Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
as otherwise described under "Description of the Mortgage Pool" in the
Prospectus Supplement and except for the imposition of a default rate.
(li) Single Asset Entity. Except as listed on Schedule C-1 attached
hereto, the Borrower on each Mortgage Loan is, as of the origination of the
Mortgage Loan, an entity, other than an individual, whose organizational
documents or the related Mortgage Loan Documents provide substantially to the
effect that the Borrower: (A) is formed or organized solely for the purpose of
owning and operating one or more of the Mortgaged Properties securing the
Mortgage Loans, (B) may not engage in any business unrelated to such Mortgaged
Property or Mortgaged Properties, (C) does not have any material assets other
than those related to its interest in and operation of such Mortgage Property or
Mortgaged Properties, (D) may not incur indebtedness other than as permitted by
the related Mortgage or other Mortgage Loan Documents, (E) has its own books and
records separate and apart from any other person, and (F) holds itself out as a
legal entity, separate and apart from any other person.
(lii) Delivery of Mortgage File. The Seller has delivered to the
Trustee or a Custodian appointed thereby, with respect to each Mortgage Loan, a
complete Mortgage File (subject to the provisions set forth in the Pooling and
Servicing Agreement).
(liii) Collateral. The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(liv) Assignability of Mortgage Note. Neither the related Mortgage
Note nor the related Mortgage contain provisions limiting the right or ability
of Seller to assign, transfer and convey such documents.
(lv) Tax Lots. Each Mortgaged Property constitutes one or more
complete separate tax lots.
(lvi) Operating Statements. The related Mortgage requires the
related Borrower to provide the holder of such Mortgage with quarterly and
annual operating statements, rent rolls and related information.
(lvii) Rating Agency Fees. The related Mortgage or other related
loan documents provide that the Borrower shall pay any fees payable to a Rating
Agency in connection with the approval of an assumption of the related Mortgage
Loan (if such Mortgage or other related loan documents provides that Rating
Agency approval is a specific condition precedent thereto.)
(lviii) Zoning. To the Seller's knowledge, as of the date of the
origination of the Mortgage Loan, the related Mortgaged Property is, in all
material respects, in compliance with, and is used and occupied in accordance
with, all restrictive covenants of record applicable to such Mortgaged Property
and applicable zoning laws.
(lix) Access to Public Road. As of the origination of such Mortgage
Loan and, to the knowledge of the Seller, as of the Closing Date, the related
Mortgaged Property has access to a public road.
(lx) Size of Mortgage Loans. As of the Closing Date, not more than
5% of the aggregate outstanding principal amount of all the Mortgage Loans being
purchased by the Purchaser on the Closing Date have the same Borrower or, to the
Seller's best knowledge, have Mortgagors that are affiliates of each other.
(lxi) Independendent Appraiser. The Mortgage File contains an
appraisal of the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge had no interest, direct or indirect,
in the Mortgaged Property or the Borrower or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; the appraisal satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect on the date the
Mortgage Loan was originated.
It is understood and agreed that the representations and warranties set forth in
this Exhibit C shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser,
and its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
<PAGE>
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
OF SELLER REGARDING THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations
and warranties contained in the corresponding paragraph in Exhibit C:
(xiv) Environmental Condition:
-----------------------
Loan No. 72 (The Strand) - the representations is true and accurate
except that environmental insurance was obtained in lieu of
a Phase I environmental report.
Loan No. 94 (137-139 E. 110th Street) - the representation is true and
accurate except that the environmental insurance was
obtained in lieu of a Phase I environmental report.
Loan No. 104 (Nasa Road One Shopping Center) - the representation is
true and accurate except that the environmental insurance
was obtained in lieu of a Phase I environmental report.
Loan No. 105 (Columbus Square Shopping Center) - the representation is
true and accurate except that the environmental insurance
was obtained in lieu of a Phase I environmental report.
(xliii) Defeasance Costs:
----------------
Loan No. 4 (Radisson Mart Plaza Hotel) - the representation is true
and accurate except that the Borrower is not required to
provide a REMIC opinion in connection with defeasance.
(xliv) Release or Substitution of Collateral:
-------------------------------------
Loan No. 27 (Barton Industries) - the representation is true and
accurate except that the loan documents do not prohibit the
release or substitution of collateral if such release or
substitution would constitute a "significant modification"
of the Mortgage Loan within the meaning of Treas. Reg.
section. 1.1001-3 or would cause the Mortgage Loan to not
be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code.
(xlvii) Non-Recourse Exceptions:
-----------------------
Loan No. 35 (American Mini Storage) - the representation is true and
accurate except that neither an entity nor an individual
other than the Borrower has agreed to be liable for losses
relating to fraud by the Borrower.
Loan Nos. 8A, 8B, 8C, 11, 25, 29, 34, 35, 43, 44, 47, 48, 58, 66, 73, 76, 78,
84, 87, 91, 93, 96, 97, 99, 103, 106, 107, 110, 111, 112 - the
representation is true and accurate except that neither an
entity nor an individual other than the Borrower has agreed to
be liable for losses relating to a breach of the environmental
covenants contained in the Mortgage Loan.
(li):
Loan No. 34 (Homebase Norco) - the representation is true and accurate
except that the Mortgage Loan Documents do not provide that
the Borrower (A) is formed or organized solely for the
purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans, (B) may
not engage in any business unrelated to such Mortgaged
Property or Mortgaged Properties, (C) does not have any
material assets other than those related to its interest in
and operation of such Mortgaged Property or Mortgaged
Properties, (D) may not incur indebtedness other than as
permitted by the Mortgage or other Mortgage Loan Documents
and (D) holds itself out as a legal entity separate and
apart from any other person.
Loan No. 72 (The Strand) - the representation is true and accurate
except that the Mortgage Loan Documents do not require the
Borrower to be a special purpose entity.
Loan No. 87 (Arrowhead Self-Storage) - the representation is true
and accurate except that the Mortgage Loan Documents do not
provide that the Borrower may not incur indebtedness other
than as permitted by the Mortgage or other Mortgage Loan
Documents.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of Morgan Guaranty Trust Company of New York
-------------------------------------------------------------------
I, _____________________________, a ______________________ of Morgan
Guaranty Trust Company of New York (the "Seller"), hereby certify as follows:
The Seller is a banking corporation duly organized and validly
existing under the laws of the State of New York.
Attached hereto as Exhibit I is a true and correct copy of the
Charter of the Seller, which Charter is on the date hereof, and have been at all
times in full force and effect.
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated September 1, 2000 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2000.
By:____________________________________
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected
or appointed, as the case may be, qualified and acting __________ of the Seller
and that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2000.
By:____________________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of Morgan Guaranty Trust Company of New York
--------------------------------------------------------
In connection with the execution and delivery by Morgan Guaranty
Trust Company of New York (the "Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated September 1, 2000 (the "Purchase Agreement"), between Deutsche Mortgage &
Asset Receiving Corporation and the Seller, the Seller hereby certifies that (i)
the representations and warranties of the Seller in the Purchase Agreement are
true and correct in all material respects at and as of the date hereof with the
same effect as if made on the date hereof, and (ii) the Seller has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the date
hereof. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
Certified this _____ day of __________, 2000.
Morgan Guaranty Trust Company of New
York
By:____________________________________
Name:
Title:
<PAGE>
BILL OF SALE
BILL OF SALE, made as of the 20th of September, 2000, by Morgan
Guaranty Trust Company of New York, a New York banking corporation ("Seller"),
to Deutsche Mortgage & Asset Receiving Corporation, a Delaware corporation
("Depositor").
WHEREAS, Seller and Depositor are parties to that certain Mortgage
Loan Purchase Agreement (the "Loan Purchase Agreement"), dated as of September
1, 2000 with respect to the sale by Seller and purchase by Depositor of the
Mortgage Loans;
WHEREAS, Depositor intends to sell the Mortgage Loans to Wells Fargo
Bank Minnesota, N.A., as Trustee (the "Trustee"), in connection with the
issuance of its COMM 2000-C1 Commercial Mortgage Pass-Through Certificates,
issued under a Pooling and Servicing Agreement, dated as of September 1, 2000
(the "Pooling and Servicing Agreement"), by and among Depositor, Orix Real
Estate Capital Markets, LLC, as servicer and special servicer, the Trustee, and
LaSalle Bank National Association, as bond administrator, paying agent and
companion paying agent among other parties;
NOW THEREFORE, Seller, for and in consideration of the Mortgage Loan
Purchase Price set forth herein, and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, does hereby sell, transfer,
assign, set over and otherwise convey to Depositor, without recourse, all the
right, title and interest of Seller in and to the proceeds of any related title,
hazard, or other insurance policies and any escrow, reserve or other comparable
accounts related to the Mortgage Loans identified on the Mortgage Loan Schedule
to the Loan Purchase Agreement.
The Mortgage Loan Purchase Price shall consist of Depositor
delivering to Seller, cash in the amount of $258,055,017.96, representing the
Mortgage Loan Purchase Price.
Seller hereby represents and warrants to Depositor, as of the date
above written, that each of the representations and warranties set forth in
Section 4 of the Loan Purchase Agreement is true and correct.
Seller hereby acknowledges receipt of the Mortgage Loan Purchase
Price, which sum represents payment in full of the purchase price for all of
Seller's right, title and interest in and to Mortgage Loans having an aggregate
unpaid principal balance as of the Cut-off Date of $249,914,693 together with
the related Mortgage Loan Documents, and all of Seller's right, title and
interest in and to all insurance coverage, with respect to the Mortgage Loans
(and all proceeds thereof) and Seller's interest in any Mortgaged Property that
secures a Mortgage Loan but that has been acquired by foreclosure or deed in
lieu of foreclosure (collectively, the "Mortgage Assets.")
Depositor represents and warrants to Seller, as of the date above
written, that each of the representations and warranties set forth in Section 5
of the Loan Purchase Agreement is true and correct.
Depositor hereby acknowledges receipt from Seller of (i) the
Mortgage Loans identified on Exhibit A to the Loan Purchase Agreement and (ii)
the Mortgage Assets.
Nothing in this Bill of Sale shall be construed to be a modification
of, or limitation on any provision of, the Loan Purchase Agreement, including
the representations, warranties and agreements set forth therein.
Unless otherwise defined herein, capitalized terms used in this Bill
of Sale shall have the meanings assigned to them in the Loan Purchase Agreement,
or if not defined in the Loan Purchase Agreement, the Pooling and Servicing
Agreement.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, Seller and Depositor have caused this Bill of
Sale to be executed and delivered by its respective officer thereunto duly
authorized as of the date above written.
MORGAN GUARANTY TRUST COMPANY
By: /s/ Clive Bull
---------------------------------------------
Name: Clive Bull
Title: vice President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ R. Douglas Donaldson
---------------------------------------------
Name: R. Douglas Donaldson
Title: Treasurer
<PAGE>
POWER OF ATTORNEY
RECORDING REQUESTED BY:
Morgan Guaranty Trust Company of New York
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that Morgan Guaranty Trust Company of New York
("MGT"), as seller under that certain Mortgage Loan Purchase Agreement dated as
of September 1, 2000 by and between MGT, as seller, and Deutsche Mortgage &
Asset Receiving Corporation ("DMARC"), as purchaser (the "Mortgage Loan Purchase
Agreement"), does hereby appoint ORIX REAL ESTATE CAPITAL MARKETS, LLC, in its
capacity as special servicer (the "Special Servicer") under the Pooling and
Servicing Agreement dated as of September 1, 2000, by and among DMARC, as
depositor, Orix Real Estate Capital Markets, LLC, as servicer, the Special
Servicer, Wells Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank National
Association, as bond administrator, and the other parties named therein, as its
true and lawful attorney-in-fact for it and in its name, place, stead and for
its use and benefit, but solely:
To take such lawful action as is necessary to effect the delivery,
assignment and/or recordation of any documents and/or instruments
relating to any Mortgage Loan sold by MGT pursuant to the Mortgage
Loan Purchase Agreement to DMARC set forth in Schedule I hereto,
which has not been delivered, assigned or recorded at the time
required for enforcement by the Trust Fund (as defined in the
Mortgage Loan Purchase Agreement).
<PAGE>
IN WITNESS WHEREOF, the undersigned caused this power of attorney to be executed
as of 11th day of September, 2000.
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By: /s/ Michael Jungman
--------------------------------------
Name: Michael Jungman
Title: Managing Director
<PAGE>
POWER OF ATTORNEY
RECORDING REQUESTED BY:
Morgan Guaranty Trust Company of New York
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
--------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that Morgan Guaranty Trust Company of New York
("MGT"), as seller under that certain Mortgage Loan Purchase Agreement dated as
of September 1, 2000 by and between MGT, as seller, and Deutsche Mortgage &
Asset Receiving Corporation ("DMARC"), as purchaser (the "MORTGAGE LOAN PURCHASE
AGREEMENT"), does hereby appoint ORIX REAL ESTATE CAPITAL MARKETS, LLC, in its
capacity as special servicer (the "SPECIAL SERVICER") under the Pooling and
Servicing Agreement dated as of September 1, 2000, by and among DMARC, as
depositor, Orix Real Estate Capital Markets, LLC, as servicer, the Special
Servicer, Wells Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank National
Association, as bond administrator, and the other parties named therein, as its
true and lawful attorney-in-fact for it and in its name, place, stead and for
its use and benefit, but solely:
To take such lawful action as is necessary to effect the delivery,
assignment and/or recordation of any documents and/or instruments
relating to any Mortgage Loan sold by MGT pursuant to the Mortgage
Loan Purchase Agreement to DMARC set forth in Schedule I hereto,
which has not been delivered, assigned or recorded at the time
required for enforcement by the Trust Fund (as defined in the
Mortgage Loan Purchase Agreement).
<PAGE>
IN WITNESS WHEREOF, the undersigned caused this power of attorney to be executed
as of 11th day of September, 2000.
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By: /s/ Michael Jungman
--------------------------------------
Name: Michael Jungman
Title: Managing Director
<PAGE>
SCHEDULE I
<PAGE>
EXHIBIT J
LASALLE BANK NATIONAL ASSOCIATION PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective September 1, 2000, between LaSalle Bank National Association, as
seller (the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to COMM 2000-C1 Mortgage
Trust, a trust fund (the "Trust Fund") to be formed by the Purchaser, beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Standard & Poor's Ratings Services, a division of the McGraw Hill
Companies and Fitch, Inc. (together, the "Rating Agencies"). Certain classes of
the Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of September 1, 2000 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, ORIX Real Estate
Capital Markets, LLC, as servicer (in such capacity, the "Servicer") and special
servicer (in such capacity, the "Special Servicer"), LaSalle Bank National
Association, as Bond Administrator (the "Bond Administrator"), Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"), and the other parties specified
therein. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc., J. P. Morgan Securities Inc. and Chase
Securities Inc. (together, the "Underwriters") pursuant to an underwriting
agreement dated September 11, 2000 (the "Underwriting Agreement"). The
Purchaser intends to sell the remaining Certificates (the "Non-Registered
Certificates") pursuant to a certificate purchase agreement dated
September 11, 2000 (the "Certificate Purchase Agreement") to the purchasers
named therein (the "Initial Purchasers").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
---------------------
The Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on September 20, 2000
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on September 1, 2000 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$228,045,048, subject to a variance of plus or minus 5%. The purchase price of
the Mortgage Loans shall be calculated pursuant to that certain Letter of
Intent, dated May 18, 2000, between, among others, the Seller and the Purchaser.
SECTION 2. Conveyance of Mortgage Loans.
----------------------------
(a) On the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof and the issuance of the
Certificates, the Seller agrees to sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule, including all interest and principal received or receivable by
the Seller on or with respect to the Mortgage Loans after the Cut-off Date,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans
subject to right of certain subservicers listed on the Mortgage Loan Schedule.
The Purchaser shall be entitled to (and, to the extent received by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date; provided,
however, that all scheduled payments of principal and interest accrued but not
paid or due thereon, due on or before the Cut-off Date and collected after the
Cut-off Date shall belong to the Seller, and the Purchaser or its successors or
assigns shall promptly remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain Richardson
Consulting to complete the assignment and recordation of the related Loan
Documents. On or promptly following the Closing Date, the Seller shall cause
such third party vendor, to the extent possession of recorded copies of each
Mortgage and the documents described in clauses (iv), (v), (vi), (vii), (viii),
(xi), (xvii) and (xviii) of Exhibit B have been delivered to it, at the expense
of the Seller, (1) to prepare and record (a) each Assignment of Mortgage
referred to in clause (iii) of Exhibit B which has not yet been submitted for
recording and (b) each Reassignment of Assignment of Leases, Rents and Profits
referred to in clauses (iv) and (v) of Exhibit B (if not otherwise included in
the related Assignment of Mortgage) which has not yet been submitted for
recordation; and (2) to prepare and file each UCC financing statement referred
to in clause (xi) or (xviii) which has not yet been submitted for filing. The
Seller shall direct the related third party vendor to promptly prepare and
submit (and in no event later than 30 Business Days following the receipt of the
related documents in the case of clause 1(a) above and 60 days following the
receipt of the applicable documents in the case of clauses 1(b) and 2 above) for
recording or filing, as the case may be, in the appropriate public recording
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Seller, at its expense,
shall promptly prepare a substitute document for signature by the Purchaser or
itself, as applicable, and thereafter the Seller shall cause each such document
to be duly recorded. The Seller shall, promptly upon receipt of the original
recorded copy (and in no event later than five Business Days following such
receipt) deliver such original to the Custodian (in the case of each UCC, with
evidence of filing thereon). Notwithstanding anything to the contrary contained
in this Section 2, in those instances where the public recording office retains
the original Mortgage, Assignment of Mortgage or Reassignment of Assignment of
Leases, Rents and Profits, if applicable, after any has been recorded, the
obligations hereunder of the Purchaser shall be deemed to have been satisfied
upon delivery to the Custodian of a copy of such Mortgage, Assignment of
Mortgage or Reassignment of Assignment of Leases, Rents and Profits, if
applicable, certified by the public recording office to be a true and complete
copy of the recorded original thereof.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller hereby agrees that, at least five (5) Business
Days before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Note referred to in clause (i) of Exhibit B has been
delivered by the Seller with respect to each such Mortgage File.
If the Seller cannot deliver any original or certified recorded
document described in Section 2 on the Closing Date, the Seller shall use its
best efforts, promptly upon receipt thereof and in any case not later than 45
days from the Closing Date (except as described below with respect to the items
described in clauses (ii), (iv), (viii), (xi) and (xii) of Exhibit B) to deliver
such original or certified recorded documents to the Trustee (unless the Seller
is delayed in making such delivery by reason of the fact that such documents
shall not have been returned by the appropriate recording office in which case
it shall notify the Trustee in writing of such delay).
In the event Seller fails to so deliver each such Mortgage File to
the Trustee, the Purchaser and its successors and assigns shall be entitled to
pursue any rights or remedies in respect of such failure as may be available
under applicable law. If the Seller cannot deliver, or cause to be delivered, as
to any Mortgage Loan, the original or a copy of any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of Exhibit
B, with evidence of recording thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, or because such original recorded document
has been lost or returned from the recording or filing office and subsequently
lost, as the case may be, the delivery requirements of this Section 2(b) shall
be deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the Seller to be a true and complete copy of
the original thereof submitted for recording or filing, as the case may be) has
been delivered to the Trustee, and either the original of such missing document
or instrument, or a copy thereof, with evidence of recording or filing, as the
case may be, thereon, is delivered to or at the direction of the Purchaser (or
any subsequent owner of the affected Mortgage Loan, including without limitation
the Trustee) within 90 days of the Closing Date (or within such longer period
after the Closing Date as the Purchaser (or such subsequent owner) may consent
to, which consent shall not be unreasonably withheld so long as the Seller has
provided the Purchaser (or such subsequent owner) with evidence of such
recording or filing, as the case may be, or has certified to the Purchaser (or
such subsequent owner) as to the occurrence of such recording or filing, as the
case may be, and is, as certified to the Purchaser (or such subsequent owner) no
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a commitment for title insurance "marked-up"
at the closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
has been received by the Seller and the issuance of the Certificates, the
Trustee shall be authorized to release to the Purchaser or its designee all of
the Mortgage Files in the Trustee's possession relating to the Mortgage Loans.
The Purchaser and the Seller have delivered, contemporaneously with
their execution of this Agreement, a power of attorney to each of the Servicer
and the Special Servicer at the direction of the Directing Certificateholder or
its assignees, to take such other action as is necessary to effect the delivery,
assignment and/or recordation of any documents and/or instruments relating to
any Mortgage Loan which have not been delivered, assigned or recorded at the
time required for enforcement by the Trust Fund. The Seller will be required to
effect at its expense the assignment and recordation of its Loan Documents until
the assignment and recordation of all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and shall thereafter deliver the substitute or corrected
document to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee) for recording
or filing, as appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under
its control) relating to the Mortgage Loans that are not required to be a part
of a Mortgage File in accordance with Exhibit B but that are reasonably required
to service the Mortgage Loans (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller or its agent shall deliver a copy of
the related Servicing File to the Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale, including for accounting purposes.
(f) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loans and all rights and remedies under this Agreement to
the Trustee, including, without limitation, all rights and remedies as may be
available under applicable law to the Purchaser in the event of a breach of a
representation or warranty pursuant to Section 4(a) hereof or in the event of a
Defect; provided, that the Trustee shall be a third-party beneficiary of this
Agreement and shall be entitled to enforce any obligations of the Seller
hereunder in connection with a breach of any such representation or warranty or
a Defect as if the Trustee had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
-----------------------------------------------------------
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
-------------------------------------------------------
(a) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States
of America, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by the
Seller, will not violate the Seller'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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of national banks,
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with, the
terms of this Agreement will not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations under
this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (B) solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described
in clauses (A) through (E) above) would constitute or result in a violation
of the Securities Act or any state securities law relating to or in
connection with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state securities law of
any Certificate not otherwise intended to be a Registered Certificate. In
addition, the Seller will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans or
any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-4 through A-7, inclusive, of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (as defined in
Section 9) under the headings "Summary of Prospectus Supplement--The
Mortgage Pool", "Risk Factors" and "Description of the Mortgage Pool", set
forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the Seller
with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) the filing or recording of financing
statements, instruments of assignment and other similar documents necessary
in connection with the Seller's sale of the Mortgage Loans to the
Purchaser, (2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties made pursuant to and set forth in
subsection (b) above which materially and adversely affects the interests of the
Purchaser or a breach of any of the representations and warranties made pursuant
to subsection (a) above and set forth in Exhibit C which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates), the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance of, and compliance with, the terms of this Agreement by
the Purchaser, will not violate the Purchaser'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 Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser 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 Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with, the
terms of this Agreement will not constitute a violation of, any law, any
judgment, 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 Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters, the
Initial Purchasers and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
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(a) Upon discovery by any of the parties hereto of any Defect (as
defined in the Pooling and Servicing Agreement) in respect of the Mortgage File
for any Mortgage Loan or a breach of any representation or warranty made
pursuant to Section 4(a) and set forth in Exhibit C, which Defect or breach, as
the case may be, materially and adversely affects the value of any Mortgage Loan
(it being understood and agreed that the non-delivery of any of the items
identified in clauses (i), (ii) or (iii) of Exhibit B with respect to a Mortgage
Loan shall constitute a Defect that materially and adversely affects the value
of such Mortgage Loan) or the interests therein of the Purchaser or its
successors and assigns (including, without limitation, the Trustee, the
Servicer, the Special Servicer and the holders of the Certificates), the party
discovering such breach or Defect shall give prompt written notice to the
Purchaser, the Bond Administrator, the Seller, the Directing Certificateholder,
the Custodian, the Servicer, the Special Servicer (in the case of a Specially
Serviced Mortgage Loan) or the Trustee, as applicable. Within 90 days of receipt
of notice by the Seller, from the Servicer, the Special Servicer, the Trustee,
the Custodian or the Bond Administrator, of such breach or Defect, the Seller
shall cure such Defect or breach, as the case may be, in all material respects
or repurchase the affected Mortgage Loan from the then owner(s) thereof at the
applicable Repurchase Price (as defined in the Pooling and Servicing Agreement
as in effect on the Closing Date) on a whole loan, servicing released basis, by
payment of such Repurchase Price by wire transfer of immediately available funds
to the account designated by such owner(s); provided, however, that in the event
that such breach is capable of being cured, as determined by the Servicer and
the Special Servicer, but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such breach, the Seller
will have up to an additional 90 days to complete such cure as provided in the
Pooling and Servicing Agreement (as in effect on the Closing Date); provided,
further, that with respect to such additional period, the Seller is required to
deliver an officer's certificate to the Trustee, the Bond Administrator, the
Servicer and the Special Servicer setting forth the reason such breach is not
capable of being cured within the initial 90-day period and what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such breach will be cured within the additional period;
and provided, further, that in the event the Seller fails to cure such breach,
the Repurchase Price shall include interest on any Advances made in respect of
the related Mortgage Loan; provided, however, that in lieu of effecting any such
repurchase, within two years of the Startup Day, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement. The Seller will give written
notice to the Purchaser, the Bond Administrator and the Servicer of such
deposit, as directed by the Trustee. Conveyance of such Mortgage Loans shall be
made free and clear of all Liens and encumbrances created or suffered by the
Purchaser or any subsequent holder. Upon any substitution, the Qualifying
Substitute Mortgage Loan shall be subject to the terms of the Pooling and
Servicing Agreement in all respects. In the event that (x) any cure or
repurchase obligation under this Section arises by reason of the failure of a
Mortgage Loan to constitute a Qualified Mortgage and the Seller elects to
substitute a Qualifying Substitute Mortgage Loan in lieu of such cure or
repurchase, and (y) the Directing Certificateholder fails to consent to such
substitution, then such Mortgage Loan (and any related Cross-Collateralized
Loan) must be repurchased by the Seller.
In addition to the rights of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates) pursuant to this Section 6, if the Seller cannot deliver, or cause
to be delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in Section 2 and as listed in Exhibit B
(and provide evidence of recordation and/or assignment where applicable), the
Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates) may require the Seller to establish
a cash reserve (or provide a letter of credit) in the amount of 20% of the
principal balance of such Mortgage Loan for which any documents and/or
instruments specified in clauses (i) through (vii), (ix), (xi) and (xiv) through
(xvi) of Exhibit B remain missing, uncorrected, unrecorded or unassigned 18
months after the Closing Date. Amounts in such reserve related to a particular
Mortgage Loan shall either be released to the Seller upon delivery of the
documents and/or instruments specified in such clauses or when such Mortgage
Loan is paid in full, or if such Mortgage Loan is required to be repurchased as
provided in this Section, such amounts shall be credited against the Repurchase
Price for such Mortgage Loan.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Servicer, the Special Servicer, Trustee or Bond
Administrator to notify the Seller of a Defect or breach shall not constitute a
waiver of any cure or repurchase obligation.
(b) Notwithstanding Section 6(a), within 90 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
without regard to clause (A)(i) or (ii) thereof, the Seller shall repurchase
such Mortgage Loan from the then owner(s) thereof at the applicable Repurchase
Price by payment of such Repurchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 6, the then owner(s) thereof shall
tender promptly or cause to be tendered promptly to the Seller, upon delivery of
a receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the
sole remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the Certificates)
respecting any Defect in a Mortgage File or any breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, or in
connection with the circumstances described in Section 6(b). If the Seller
defaults on its obligations to cure, to repurchase, or to substitute for, any
Mortgage Loan in accordance with Section 6(a) or Section 6(b), or disputes its
obligation to cure, to repurchase, or to substitute for, any Mortgage Loan in
accordance with either such subsection, the Purchaser or its successors and
assigns may take such action as is appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
appropriate proceedings. To the extent the Purchaser prevails in such
proceeding, the Seller shall reimburse the Purchaser for all necessary and
reasonable costs and expenses incurred in connection with the enforcement of
such obligation of the Seller to cure, to repurchase, or to substitute for, any
Mortgage Loan in accordance with Section 6(a) or Section 6(b).
SECTION 7. Closing.
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The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, New York 10038 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and the
Aggregate Cut-off Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
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The Closing Documents shall consist of the following:
(a) This Agreement and a bill of sale duly executed and delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely, attaching thereto as exhibits the organizational documents of the
Seller;
(c) A certificate of good standing regarding the Seller from the
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) Written opinions of counsel for the Seller, in the form
reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser and each Underwriter as
an addressee; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; but only if and
to the extent that (i) any such untrue statement or alleged untrue statement is
with respect to information regarding the Mortgage Loans contained in the Loan
Detail or, to the extent consistent therewith, the Diskette; or (ii) any such
untrue statement or alleged untrue statement or omission or alleged omission is
with respect to information regarding the Seller or the Mortgage Loans contained
in the Prospectus Supplement or the Memorandum under the headings "Summary of
Prospectus Supplement--The Mortgage Pool", "Risk Factors" or "Description of the
Mortgage Pool" or contained on Annex A to the Prospectus Supplement (exclusive
of the Loan Detail), and such information does not represent a restatement or
aggregation of information contained in the Loan Detail; or (iii) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the Seller
set forth in or made pursuant to Section 4; provided, that the indemnification
provided by this Section 9 shall not apply to the extent that such untrue
statement of a material fact or omission of a material fact necessary to make
the statements made, in light of the circumstances in which they were made, not
misleading, was made as a result of an error in the manipulation of, or
calculations based upon, the Loan Detail. This indemnity agreement will be in
addition to any liability which the Seller may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean
the registration statement No. 333-08328 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated August 11,
2000, as supplemented by the prospectus supplement dated September 11, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated September 11, 2000, relating
to the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "Indemnified Party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "Indemnifying Party") under this
Section 9, notify the Indemnifying Party in writing of the commencement thereof;
but the omission to notify the Indemnifying Party will not relieve it from any
liability that it may have to any Indemnified Party otherwise than under this
Section 9. In case any such action is brought against any Indemnified Party and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified Party;
provided, however, that if the defendants in any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified Party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other Indemnified Parties that are different from
or additional to those available to the Indemnifying Party, the Indemnified
Party or Indemnified Parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such Indemnified Party or Indemnified Parties. Upon receipt
of notice from the Indemnifying Party to such Indemnified Party of its election
to assume the defense of such action and approval by the Indemnified Party of
counsel, which approval shall not be unreasonably withheld, the Indemnifying
Party will not be liable for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof, unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser and the Indemnifying Party, representing all the Indemnified Parties
under Section 9(a) and Section 1 of the Underwriting Agreement who are parties
to such action), (ii) the Indemnifying Party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of commencement of the action or
(iii) the Indemnifying Party has authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii). The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party, but
only to the extent provided in paragraph (a) of this Section 9, from and against
any loss or liability by reason of such settlement or judgment. If the
Indemnifying Party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the Indemnified Party, which
consent shall not be unreasonably withheld or delayed, or, if such settlement
provides for release of the Indemnified Party in connection with all matters
relating to the proceeding which has been asserted against the Indemnified Party
in such proceeding by the other parties to such settlement, without the consent
of the Indemnified Party.
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an Indemnified Party on grounds of policy or otherwise, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Indemnified Parties
and the Indemnifying Parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 9, which expenses the Indemnifying Party shall
pay as and when incurred, at the request of the Indemnified Party, to the extent
that the Indemnifying Party will be ultimately obligated to pay such expenses.
If any expenses so paid by the Indemnifying Party are subsequently determined to
not be required to be borne by the Indemnifying Party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Indemnified Party, and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10. Costs.
-----
Costs relating to the transactions contemplated hereby shall be
borne by the respective parties hereto pursuant to that certain Letter of
Intent, dated May 18, 2000, between, among others, the Purchaser and the Seller.
SECTION 11. Notices.
-------
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by certified mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Deutsche Mortgage & Asset Receiving
Corporation, One International Place, Room 520, Boston, Massachusetts 02110,
Attention: R. Douglas Donaldson, facsimile no. (617) 951-7650, with a copy to
Anna Glick, Esq., Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New
York 10038, facsimile no. (212) 504-6666, or such other address or facsimile
number as may hereafter be furnished to the Seller in writing by the Purchaser;
and if to the Seller, addressed to LaSalle Bank National Association, 135 S.
LaSalle Street, Suite 1260, Chicago, Illinois 60603, Attention: Robert Walter,
facsimile no. 312-904-0900, or to such other address or facsimile number as the
Seller may designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
-------------------------
Each of the officers, directors and controlling persons referred to
in Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it were a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
--------------------------
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. Further Assurances.
------------------
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
----------------------
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller and the Purchaser, and their
permitted successors and assigns, and the indemnified parties referred to in
Section 9.
SECTION 19. Amendments.
----------
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
SECTION 20. No Recourse.
-----------
No recourse under any obligation, covenant or agreement of the
Purchaser contained in this Agreement shall be had against J.H. Management
Corporation ("JHM"), JH Holdings Corporation ("JHHC") or any incorporator,
stockholder, officer, director or employee of the Purchaser, JHM or JHHC, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Agreement is solely a corporate obligation of the Purchaser, and that no
personal liability whatever shall attach to or be incurred by the incorporators,
stockholders, officer, directors or employees of the Purchaser, JHM or JHHC, or
any of them under or by reason of any of the obligations, covenants or
agreements of the Purchaser contained in this Agreement, or implied therefrom,
and that any and all personal liability for breaches by the Purchaser of any of
such obligations, covenants or agreements either at common law or at equity, or
by statute or constitution, of JHM or JHHC and every such incorporator,
stockholder, officer, director or employee is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
LaSalle Bank National Association
By: /s/ Margaret Govern
--------------------------------------
Name: Margaret Govern
Title: Senior Vice President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Rosa Oliveri
--------------------------------------
Name: Rosa Oliveri
Title: Vice President
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of the
related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date and that the
Mortgage Loan is a fixed rate Mortgage Loan;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the (A) Maturity Date for each Mortgage Loan, and (B) with
respect to each Mortgage Loan with an Anticipated Repayment Date, the
Anticipated Repayment Date;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date,
following the Cut-off Date;
(i) whether such Mortgage Loan has an Anticipated Repayment Date;
(j) the Primary Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan; and
(l) whether such Mortgage Loan has a hard lock-box or a springing
lock-box.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Note, endorsed by the most recent endorsee prior to
the Trustee or, if none, by the Originator, without recourse, either in blank or
to the order of the Trustee in the following form: "Pay to the order of Wells
Fargo Bank Minnesota, N.A., as trustee for the registered holders of COMM
2000-C1, Mortgage Pass-Through Certificates, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the Originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) the original or a copy of the related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage) and,
if applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the Originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the Originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued as of the date of the origination of the Mortgage Loan, together with all
endorsements or riders (or copies thereof) that were issued with or subsequent
to the issuance of such policy, insuring the priority of the Mortgage as a first
lien on the Mortgaged Property or a "marked up commitment to insure";
(x) the original or a copy of any guaranty of the obligations of the
mortgagor under the Mortgage Loan together with (A) if applicable, the original
or copies of any intervening assignments of such guaranty showing a complete
chain of assignment from the Originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any, and (B) an original assignment of
such guaranty executed by the most recent assignee thereof prior to the Trustee
or, if none, by the Originator;
(xi) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and maintain
the perfection of) any security interest held by the Originator of the Mortgage
Loan (and each assignee of record prior to the Trustee) in and to the personalty
of the Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Seller (or its agent) at the
time the Mortgage Files were delivered to the Custodian, together with original
UCC-2 or UCC-3 financing statements showing a complete chain of assignment from
the secured party named in such UCC-1 financing statement to the Trustee and (B)
if any such security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the Seller, a
UCC financing statement executed by the most recent assignee of record prior to
the Trustee or, if none, by the Originator, evidencing the transfer of such
security interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Note or other document or instrument referred to above was signed on behalf of
the Mortgagor pursuant to such power of attorney;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any; (xv) copies of the original
Environmental Reports of the Mortgaged Properties made in connection with
origination of the Mortgage Loans, if any;
(xvi) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xvii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xviii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts,
if any, a copy of the UCC-1 financing statements, if any, submitted for filing
with respect to the Seller's security interest in the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts and all funds contained therein (and
UCC-3 financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders); and
(xix) any other material written agreements related to the Mortgage
Loan;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or 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. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and warrants,
as of the date hereinbelow specified or, if no such date is specified, as of the
Closing Date, except as set forth on Schedule C-1 hereto as follows (as used
herein, "to Seller's knowledge" or words of similar import means the knowledge
of such entity without investigation or inquiry relating to this transaction):
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than the right of a subservicer to directly service such Mortgage Loan as shown
on the Mortgage Loan Schedule). Such transfer validly assigns ownership of such
Mortgage Loan to the Purchaser free and clear of any pledge, lien, encumbrance
or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision of
the Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date. The Seller has not taken any
action that would cause the representations and warranties made by the related
Borrower under the Mortgage Loan not to be true and correct in any material
respect. The Seller has no knowledge that the material representations and
warranties made by such Borrower under the Mortgage Loan are not true and
correct in any material respect. Each Mortgage Loan is properly endorsed as
provided in the Pooling and Servicing Agreement, and such endorsement is
genuine.
(iv) Payment Record. Such Mortgage Loan was not delinquent as of the
Cut-off Date (giving effect to any applicable grace periods), and has not been
during the twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving effect
to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. The Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest (subject only to any
prior purchase money security interests), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a UCC
financing statement, in all personal property owned by the Borrower that is used
in, and is reasonably necessary to, the operation of the related Mortgaged
Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. Neither the Seller
nor, to the Seller's knowledge, any holder of such Mortgage Loan, has by act or
omission, done anything that would materially impair the coverage under such
Title Policy and Seller has no knowledge of any circumstances that would impair
such coverage. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer that issued such Title Policy is qualified to do business in the state
in which the related Mortgaged Property is located. The Mortgage has been
submitted for recordation in the applicable jurisdiction, the full amount of the
Mortgage has been recorded on the related Mortgaged Property and all applicable
mortgage recording taxes have been paid.
(vii) No Waivers by Seller of Material Defaults. The Seller, and to
its knowledge, any prior holder of such Mortgage Loan, has not waived any
material default, breach, violation or event of acceleration existing under the
related Mortgage or Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, right of rescission, defense or counterclaim to such Mortgage Loan or
the related Mortgage security agreements, Assignment of Leases, Rents and
Profits.
(ix) Condition of Property; Condemnation. The related Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage that would
materially and adversely affect its value as security for such Mortgage Loan.
The Seller has no knowledge of any pending or threatened proceeding for the
condemnation of all or any material portion of the related Mortgaged Property.
(x) Compliance with Laws. Except with respect to provisions relating
to default interest, yield maintenance charges and prepayment premiums, such
Mortgage Loan complied in all material respects with all applicable laws
relating to the origination, funding and terms of such Mortgage Loan (including
usury laws) in effect at its date of origination unless the failure to comply
with such laws would not have a material adverse effect on the related Mortgage
Loan.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of
such Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
(xii) Enforceability. The related Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and excluding provisions
relating to default interest, yield maintenance charges or prepayment premiums.
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured against loss by hazards of extended coverage in an amount
(subject to a customary deductible) at least equal to the lesser of (1) the
outstanding principal balance of such Mortgage Loan or (2) 100% of the full
replacement cost of the improvements located on such Mortgaged Property. If any
portion of the improvements on the related Mortgaged Property was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, and flood insurance was available, a flood insurance policy meeting any
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable actual cash
value of such Mortgaged Property, (3) the maximum amount of insurance available
under the National Flood Insurance Act of 1968, as amended, and (4) 100% of the
replacement cost of the improvements located on such Mortgaged Property. The
Mortgage requires the Borrower to maintain such insurance in respect of the
Mortgaged Property in addition to comprehensive general liability insurance in
amounts customarily required by prudent institutional lenders for similar
properties, and at least twelve months rental or business interruption insurance
for Mortgaged Properties other than hotels, and eighteen months business
interruption insurance for hotel-related properties. All such insurance required
by the Mortgage to be maintained is in full force and effect and names the
Originator, the Seller or their respective successors or assigns as mortgagee,
loss payee or additional insured. All premiums on such insurance policies
required to be paid as of the date hereof have been paid. Each such insurance
policy requires 10-day prior written notice to the holder of the Mortgage of
termination or cancellation, and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. As of the date of
closing of the applicable Mortgage Loan and, to the Seller's knowledge, as of
the Closing Date, each insurer under such insurance policies has a claims paying
rating of "BBB" or better by at least one rating agency or A-/VII or higher by
A.M. Best's Key Rating Guide and is qualified to do business in the jurisdiction
where the related Mortgaged Property is located. Each Mortgage Loan obligates
the related Borrower to maintain all such insurance, and upon such Borrower's
failure to do so, authorizes the mortgagee to maintain such insurance at the
Borrower's cost and expense and to seek reimbursement therefor from such
Borrower.
(xiv) Environmental Condition. The Borrower with respect to each
Mortgage Loan has represented and warranted that except as set forth in certain
environmental reports included in the related loan documents, and to the best of
its knowledge, it has not used, caused or permitted to exist, and will not use,
cause or permit to exist on the related Mortgaged Property any Hazardous
Materials in any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials; the related Borrower or an affiliate thereof
agrees to indemnify, defend and hold the mortgagee and its successors and
assigns harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted against,
any such party resulting from a breach of certain representations and warranties
or covenants given by the Borrower in connection with such Mortgage Loan. A
Phase I environmental report, and with respect to certain Mortgage Loans a Phase
II environmental report, was conducted by a reputable environmental engineer in
connection with such Mortgage Loan within 15 months prior to the Closing Date.
The Seller, having made no independent inquiry other than reviewing the
report(s), has no knowledge of any material and adverse environmental conditions
or circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). Such environmental report reveals no known, and the Seller
has no knowledge of, circumstances or conditions with respect to the Mortgaged
Property that would (i) constitute or result in a material violation of any
environmental laws, (ii) require any expenditure material in relation to the
principal balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any environmental laws for which adequate sums were not
reserved in connection with the origination of the Mortgage Loan, or (iii)
require substantial cleanup, remedial action or other material response under
any environmental laws in excess of any escrow reserved at the origination of
the Mortgage Loan. The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Borrower to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund or any Mortgage Loan not identified on the
Mortgage Loan Schedule as so cross-collateralized.
(xvi) Waivers and Modifications. The terms of the related Mortgage
and the Note have not been impaired, waived, altered or modified in any material
respect, except as specifically set forth in a written instrument included in
the related Mortgage File and which is duly recorded to the extent required to
perfect, maintain or continue the validity and priority of the Mortgage, Note
and related documents.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Borrower's Interest in Mortgaged Property. Except with
respect to Mortgage Loans the Borrower of which is a lessee under a ground lease
of a Mortgaged Property or a combination of a ground lease and a fee simple
interest (and so identified in the Mortgage Loan Schedule), the interest of the
related Borrower in the related Mortgaged Property consists of a fee simple
estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan.
(xx) Valid Assignment. The assignment of the related Mortgage
referred to in clause (iii) of Exhibit B constitutes the legal, valid and
binding assignment of such Mortgage from the relevant assignor to the Trustee.
The Assignment of Leases, Rents and Profits set forth in the Mortgage or
separate from the related Mortgage and related to and delivered in connection
with each Mortgage Loan establishes and creates a valid, subsisting and, subject
only to Permitted Encumbrances, enforceable first priority lien and first
priority security interest in the related Borrower's interest in all leases,
rents, subleases, licenses or other agreements, to the extent permitted by law,
pursuant to which any person is entitled to occupy, use or possess all or any
portion of the real property subject to the related Mortgage, and each assignor
thereunder has the full right to assign the same, to the extent permitted by
law. The related assignment of any Assignment of Leases, Rents and Profits and
any related security agreement, UCC financing statement or similar agreement or
instrument, not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment of Leases,
Rents and Profits or other agreement or instrument. The related Mortgage or such
Assignment of Leases provides for the appointment of a receiver for rents, or
allows the lender to enter into possession to collect rents or provides for
rents to be paid directly to the mortgagee in the event of a default.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan
that are, as of the Closing Date, required to be deposited with the mortgagee or
its agent have been so deposited. All such escrows have been conveyed to Orix
Real Estate Capital Markets, LLC, as servicer or the related subservicer for
such Mortgage Loan. Any and all requirements under each Mortgage Loan as to
completion of any improvements and as to disbursement of any funds escrowed for
such purpose, which requirements were to have been complied with on or before
the Closing Date have been complied with, or funds so escrowed have not been
released.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based
on surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), (a) as of the date of such origination, no improvement that
was included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent and (b) as of the date of origination, there were no material
encroachments of any part of the buildings on such Mortgaged Property over
easements (in each case, unless affirmatively covered by the Title Policy
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent. To
the Seller's knowledge, based upon opinions of counsel, an endorsement to such
Title Policy and/or other due diligence customarily performed by the Seller, the
improvements located on or forming part of such Mortgaged Property comply in all
material respects with applicable zoning laws and ordinances (except to the
extent that they may constitute legal nonconforming uses) and any immaterial
violation does not adversely affect the value of such Mortgaged Property.
(xxiv) No Material Default. (A) To the Seller's knowledge, there
exists no material default, breach or event of acceleration under the related
Mortgage, Note, Assignment of Leases and Rents, security agreement or guaranty
and (B) the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller herein.
(xxv) Inspection. (A) In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected (either directly by the Seller, by its correspondent or by a third
party) the Mortgaged Property and (B) Seller has inspected or caused to be
inspected each related Mortgaged Property within the 12 months preceding the
Cut-off Date.
(xxvi) No Equity Participation or Contingent Interest. Except for
any related Excess Interest, the Mortgage Loan contains no equity participation
by the lender, and does not provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxvii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property (other than a tenant required to make its lease payments
directly to the holder of the related Mortgage Loan), directly or indirectly,
for the payment of any amount required by the Mortgage Loan.
(xxviii) Licenses, Permits, Etc. To the Seller's knowledge as of the
Closing Date, based on due diligence customarily performed in the origination of
comparable mortgage loans by the Seller as of the origination date, (i) the
related Borrower or operator of the related Mortgaged Property was in possession
of all material licenses, permits and authorizations required by applicable laws
for the ownership, occupancy and operation of the related Mortgaged Property as
it was then operated, and such licenses, permits and authorizations are in full
force and effect and, (ii) if a related Mortgaged Property is improved by a
hotel, the most recent inspection or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and authorizations did
not cite such Mortgaged Property for material violations that had not been cured
or as to which a plan of correction had not been submitted to and accepted by
such governmental authorities. To the extent required under applicable law as of
the date of origination and the Closing Date and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it originated and held
the Mortgage Loan.
(xxix) Servicing. The origination, servicing and collection
practices used by Seller and its designees with respect to the Mortgage Loan
have been in all material respects legal, proper and prudent and have met
industry standards for servicing of commercial mortgage loans. No fraud with
respect to such Mortgage Loan has taken place on the part of Seller or, to
Seller's knowledge, on the part of any originator or Borrower in connection with
the origination of such Mortgage Loan. No other person has been granted or
conveyed the right to service the Mortgage Loans or receive any consideration in
connection therewith (other than the subservicers listed on the Mortgage Loan
Schedule).
(xxx) Customary Remedies. The related Mortgage or Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxi) Conversion. The indebtedness evidenced by a Mortgage Loan is
not convertible to an ownership interest in the related Mortgaged Property or
the related Borrower.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied
either to restore or repair the Mortgaged Property, or to repay the principal of
the Mortgage Loan.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the
related Borrower at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at least equal
to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (X) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (Y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (1) and (2) of this
paragraph (xxxiii) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans; or (B) substantially all the proceeds of such Mortgage Loan were
used to acquire, improve or protect the real property which served as the only
security for such Mortgage Loan (other than a recourse feature or other third
party credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). Any prepayment premium and yield maintenance charges
applicable to the Mortgage Loan constitutes "customary prepayment penalties"
within the meaning of Treasury Regulation Section 1.860G-1(b)(2).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Litigation. To the Seller's knowledge, there are no pending
actions, suits or proceedings or governmental investigations by or before any
court or governmental authority against or affecting the related Borrower or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Borrower to pay principal, interest or
any other amounts due under such Mortgage Loan.
(xxxvi) Leasehold Estate. Each Mortgaged Property consists of the
related Borrower's fee simple estate in real estate or, if the related Mortgage
Loan is secured in whole or in part by the interest of a Borrower as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Borrower's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest, either (1) the ground
lessor's fee interest is subordinated to the lien of the Mortgage or (2) the
following apply to such Ground Lease:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related Mortgage;
does not restrict the use of the related Mortgaged Property by the lessee
or its successors and assigns in a manner that would materially adversely
affect the security provided by the related Mortgage; and, to the knowledge
of the Seller, there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that are
a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the ground lessor's related fee interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but (except in
the case where such consent cannot be unreasonably withheld) without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor (except in the case where such consent cannot be unreasonably
withheld);
(d) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease and Seller has given the
lessor proper notice of the Mortgage lien;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any material
default by the lessee to the mortgagee, provided that the mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease, and such Ground Lease, or an estoppel
letter or other agreement, further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee unless a
copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice by certified mail,
return receipt requested of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease has an original term which extends not less
than ten years beyond the Stated Maturity Date of the related Mortgage
Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued interest
thereon and any insurance proceeds in respect of a total or substantially
total loss or taking may be applied either to payment of outstanding
principal and interest on the Mortgage Loan (except as otherwise provided
by law) or to rebuilding of the Mortgaged Property;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the related
Mortgage Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted, in
the absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of any subtenant of the lessee, or in any manner, which
would materially adversely affect the security provided by the related
Mortgage; and
(j) Such Ground Lease requires the lessor to enter into a new lease
with the Seller or its successors or assigns in the event of a termination
of the Ground Lease by reason of a default by the Borrower under the Ground
Lease, including rejection of the Ground Lease in a bankruptcy proceeding.
(k) Such Ground Lease may not be amended, modified or, except in the
case of a default, cancelled or terminated without the prior written
consent of the holder of the Mortgage Loan, and any such action without
such consent is not binding on such holder, including any increase in the
amount of rent payable by the lessee thereunder during the term of the
Mortgage Loan.
(xxxvii) Deed of Trust. If the related Mortgage is a deed of trust,
a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxviii) Lien Releases. Except in cases where either (a) a release
of a portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements and the payment of a release
price or (c) a defeasance is affected in accordance with the terms of the
Mortgage Loan Documents, the related Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
(xxxix) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof. To Seller's knowledge, the related Mortgaged Property is not
encumbered by any debt, including subordinate or pari passu Mortgages or liens,
preferred equity interests with rights and terms comparable to mezzanine debt or
mezzanine debt other than the related Mortgage Loan or another Mortgage Loan.
(xl) Due-On-Sale; Due-On-Encumbrance. Each related Mortgage or Loan
Agreement contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or Loan Agreement, the related Mortgaged Property,
or any interest therein, is directly or indirectly transferred or sold (except
for a one-time transfer), or encumbered in connection with subordinate
financing. The Mortgage requires the Borrower to pay all reasonable fees and
expenses relating to obtaining any consent and approval required pursuant
thereto.
(xli) Borrower Bankruptcy. At the origination of such Mortgage Loan,
neither the related Borrower nor any guarantor was a debtor in any pending state
of federal bankruptcy or insolvency proceeding. To the Seller's knowledge, the
Borrower is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance, or (B) permits
defeasance (i) no earlier than two years after the Closing Date (as defined in
the Pooling and Servicing Agreement, dated as of September 1, 2000), (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.86OG-2(a)(8)(i), and (iii) only to facilitate the
disposition of the Mortgaged Property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xliii) Defeasance Costs. If the Mortgage Loan permits defeasance,
then the mortgage loan documents related to such Mortgage Loan require (a) the
Borrower to pay all rating agency fees associated with defeasance and all other
reasonable out-of-pocket expenses associated with defeasance such as
accountant's fees and opinions of counsel, or (b) that the Borrower provide a
REMIC opinion, an opinion regarding the first priority perfected security
interest in the defeasance, collateral, rating agency letters certifying no
rating qualification or downgrade on any securities, and accountant
certification that all payments from the defeasance collateral are sufficient to
make monthly principal and interest payments on such Mortgage Loan through
maturity.
(xliv) Release or Substitution of Collateral. Such Mortgage Loan
does not permit the release or substitution of collateral if such release or
substitution (a) would constitute a "significant modification" of such Mortgage
Loan within the meaning of Treas. Reg. ss.1.1001-3 or (b) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii) thereof).
Except with respect to an unimproved parcel which was not given any value in
connection with the underwriting or appraisal of the Mortgage Loan, neither the
related Mortgage Note nor the related Mortgage requires the lender to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon full prepayment or, in the case of a partial
release, partial prepayment in an amount at least equal to the amount allocated
in the Mortgage to such portion of the Mortgaged Property.
(xlv) Satisfaction. No Mortgage has been satisfied, cancelled,
rescinded or subordinated in whole or in material part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in material part and there is no executed agreement to effect any of
the foregoing.
(xlvi) Capital Contributions. The Mortgage Loan Seller is not, and
its affiliates are not, obligated to make any capital contribution to the
related Borrower under the terms of the Mortgage Loan documents (other than any
such contribution made at the time of the origination of the Mortgage Loan).
(xlvii) Non-Recourse Exceptions. Except as listed on Schedule C-1
hereto, the Borrower and an entity (or individual(s)) other than the Borrower
have agreed to be, jointly and severally, liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by the lender or
lender's assignee's by reason of or in connection with and to the extent of (i)
any fraud by the related Borrower (ii) any breach of the environmental covenants
contained in the related Mortgage Loan, and (iii) the misapplication of rents,
insurance proceeds or condemnation proceeds.
(xlviii) Anticipated Repayment Date Loans. With respect to each
Mortgage Loan that is a treated as an Anticipated Repayment Date Loan by the
Rating Agencies:
(a) The maximum rate increase after the Anticipated Repayment Date
is not greater than 200 basis points above the initial interest rate;
(b) Such Mortgage Loan begins amortizing immediately; and does not
have an interest only period after the Cut-off Date;
(c) The Anticipated Repayment Date is not less than seven years from
the origination date for such Mortgage Loan;
(d) Such Mortgage Loan provides that from the Anticipated Repayment
Date through the maturity date for such Mortgage Loan, all excess cash flow
(net of monthly expenses reasonably related to the operation of the
Mortgaged Property, amounts due for reserves established under the Mortgage
Loan, and payments for any others expenses, including capital expenses,
related to the Mortgaged Property which are approved by mortgagee) will be
applied to repay principal due under the Mortgage Loan;
(e) Mortgagee may not exercise default remedies relating to a
default in payment of principal and interest after the Anticipated
Repayment Date until the maturity date of the Mortgage Loan if the borrower
pays scheduled principal and interest payments (at the initial rate); and
(f) no later than the related Anticipated Repayment Date, the
related Borrower is required (if it has not previously done so) to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer.
(xlix) Lock-Box Loans. With respect to each Mortgage Loan that was
treated by the Rating Agencies as having a hard lock-box account (the "Hard
Lock-Box Loans") (and which is designated as a Hard Lock-Box Loan on the
Mortgage Loan Schedule), (a) the related lock-box account was established as of
the Closing Date, (b) the related lock-box account is under the control of the
mortgagee or its designee, and (c) the tenants of the Mortgaged Property
securing such Mortgage Loan remit payments directly to such lock-box account.
(l) Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
as otherwise described under "Description of the Mortgage Pool" in the
Prospectus Supplement and except for the imposition of a default rate.
(li) Single Asset Entity. Except as listed on Schedule C-1 attached
hereto, the Borrower on each Mortgage Loan is, as of the origination of the
Mortgage Loan, an entity, other than an individual, whose organizational
documents or the related Mortgage Loan Documents provide substantially to the
effect that the Borrower: (A) is formed or organized solely for the purpose of
owning and operating one or more of the Mortgaged Properties securing the
Mortgage Loans, (B) may not engage in any business unrelated to such Mortgaged
Property or Mortgaged Properties, (C) does not have any material assets other
than those related to its interest in and operation of such Mortgage Property or
Mortgaged Properties, (D) may not incur indebtedness other than as permitted by
the related Mortgage or other Mortgage Loan Documents, (E) has its own books and
records separate and apart from any other person, and (F) holds itself out as a
legal entity, separate and apart from any other person.
(lii) Delivery of Mortgage File. The Seller has delivered to the
Trustee or a Custodian appointed thereby, with respect to each Mortgage Loan, a
complete Mortgage File (subject to the provisions set forth in the Pooling and
Servicing Agreement).
(liii) Collateral. The related Mortgage Note is not secured by any
collateral that is not included in the Trust Fund.
(liv) Assignability of Mortgage Note. Neither the related Mortgage
Note nor the related Mortgage contain provisions limiting the right or ability
of Seller to assign, transfer and convey such documents.
(lv) Tax Lots. Each Mortgaged Property constitutes one or more
complete separate tax lots.
(lvi) Operating Statements. The related Mortgage requires the
related Borrower to provide the holder of such Mortgage with quarterly and
annual operating statements, rent rolls and related information.
(lvii) Rating Agency Fees. The related Mortgage or other related
loan documents provide that the Borrower shall pay any fees payable to a Rating
Agency in connection with the approval of an assumption of the related Mortgage
Loan (if such Mortgage or other related loan documents provides that Rating
Agency approval is a specific condition precedent thereto.)
(lviii) Zoning. To the Seller's knowledge, as of the date of the
origination of the Mortgage Loan, the related Mortgaged Property is, in all
material respects, in compliance with, and is used and occupied in accordance
with, all restrictive covenants of record applicable to such Mortgaged Property
and applicable zoning laws.
(lix) Access to Public Road. As of the origination of such Mortgage
Loan and, to the knowledge of the Seller, as of the Closing Date, the related
Mortgaged Property has access to a public road.
(lx) Size of Mortgage Loans. As of the Closing Date, not more than
5% of the aggregate outstanding principal amount of all the Mortgage Loans being
purchased by the Purchaser on the Closing Date have the same Borrower or, to the
Seller's best knowledge, have Mortgagors that are affiliates of each other.
(lxi) Independendent Appraiser. The Mortgage File contains an
appraisal of the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge had no interest, direct or indirect,
in the Mortgaged Property or the Borrower or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; the appraisal satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect on the date the
Mortgage Loan was originated.
It is understood and agreed that the representations and warranties set forth in
this Exhibit C shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser,
and its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
<PAGE>
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
OF SELLER REGARDING THE INDIVIDUAL MORTGAGE LOANS
The following Mortgage Loans are excepted from the representations
and warranties contained in the corresponding paragraph in Exhibit C:
(xxx) Customary Remedies:
------------------
Loan No. 3 (Elmhurst Terrace Apts) - the representation is true and
correct, except that the mortgage loan documents do not
incorporate a reference to the Illinois Mortgage Foreclosure
Law, which practitioners customarily reference to give the
benefit of any broader remedies contained in that law.
(xxxix) Junior Liens:
------------
Loan No. 1 (Detroit MAC Industrial) - the representation is true
and correct, except that the personal property of the Borrower
is permitted to be subjected to purchase money security
interests to third party dealers and manufactures, up to an
aggregate limit of $1,000,000 at any time.
Loan No. 9 (Detroit MI) - the representation is true and correct,
except that the personal property of the Borrower is permitted
to be subjected to purchase money security interests to third
party dealers and manufacturers, up to an aggregate limit of
$500,000 at any time.
Loan No. 22 (Plaza 400) - the representation is true and correct,
except that the Borrower has $750,000 unsecured and
subordinated debt outstanding.
Loan No. 40 (Holly Hills Plaza) - the representation is true and
correct, except that the Borrower has $300,000 unsecured
and subordinated debt outstanding.
(xl) Due-on-Sale: Due-On Encumbrance:
--------------------------------
Loan No. 1 (Detroit MAC Industrial) - the representation is true
and correct, except that the personal property of the Borrower
is permitted to be subjected to purchase money security
interests to third party dealers and manufacturers, up to an
aggregate limit of $1,000,0000 at any time.
Loan No. 9 (Detroit MI) - the representation is true and correct,
except that the personal property of the Borrower is permitted
to be subjected to purchase money security interests to third
party dealers and manufacturers, up to an aggregate limit of
$500,000 at any time.
Loan No. 12 (Blue Cross - Rockford) - the representation is true and
correct, except that the principal of the Borrower may
pledge its beneficial interest in the Borrower if certain
terms and conditions are satisfactory to the lender in its
sole discretion.
Loan No. 21 (Blue Cross - Jacksonville) - the representation is true
and correct, except that the principal of the Borrower may
pledge its beneficial interest in the Borrower if certain
terms and conditions are satisfactory to the lender in its
sole discretion.
(xlvii) Non-Recourse Exceptions:
-----------------------
Loan No. 12 (BlueCross - Rockford): the representation is true and
correct, except that only the Borrower is guaranteeing the
non-recourse exceptions.
Loan No. 21 (BlueCross - Jacksonville): the representation is true and
correct, except that only the Borrower is guaranteeing the
non-recourse exceptions.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of LaSalle Bank National Association
-----------------------------------------------------------
I, ___________________________________, a ______________________ of
LaSalle Bank National Association (the "Seller"), hereby certify as follows:
The Seller is a national banking association duly organized and
validly existing under the laws of the United States.
Attached hereto as Exhibit I are true and correct copies of the
Articles of Association and By-Laws of the Seller, which Articles of Association
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated September 1, 2000 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2000.
By:____________________________________
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected
or appointed, as the case may be, qualified and acting __________ of the Seller
and that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2000.
By:____________________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of LaSalle Bank National Association
------------------------------------------------
In connection with the execution and delivery by LaSalle Bank
National Association (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated September
1, 2000 (the "Purchase Agreement"), between Deutsche Mortgage & Asset Receiving
Corporation and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this _____ day of __________, 2000.
LaSalle Bank National Association
By:____________________________________
Name:
Title:
<PAGE>
BILL OF SALE
BILL OF SALE, made as of the 20th of September, 2000, by LaSalle
Bank National Association ("Seller") to Deutsche Mortgage & Asset Receiving
Corporation, a Delaware corporation ("Depositor").
WHEREAS, Seller and Depositor are parties to that certain Mortgage
Loan Purchase Agreement (the "Loan Purchase Agreement"), dated as of September
1, 2000 with respect to the sale by Seller and purchase by Depositor of the
Mortgage Loans;
WHEREAS, Depositor intends to sell the Mortgage Loans to Wells Fargo
Bank Minnesota, N.A., as Trustee (the "Trustee"), in connection with the
issuance of its COMM 2000-C1 Commercial Mortgage Pass-Through Certificates,
issued under a Pooling and Servicing Agreement, dated as of September 1, 2000
(the "Pooling and Servicing Agreement"), by and among Depositor, Orix Real
Estate Capital Markets, LLC, as servicer and special servicer, the Trustee, and
LaSalle Bank National Association, as bond administrator, among other parties;
NOW THEREFORE, Seller, for and in consideration of the Mortgage Loan
Purchase Price set forth herein, and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, does hereby sell, transfer,
assign, set over and otherwise convey to Depositor, without recourse, all the
right, title and interest of Seller in and to the proceeds of any related title,
hazard, or other insurance policies and any escrow, reserve or other comparable
accounts related to the Mortgage Loans identified on the Mortgage Loan Schedule
to the Loan Purchase Agreement.
The Mortgage Loan Purchase Price shall consist of Depositor
delivering to Seller, cash in the amount of $233,673,402.70, representing the
Mortgage Loan Purchase Price.
Seller hereby represents and warrants to Depositor, as of the date
above written, that each of the representations and warranties set forth in
Section 4 of the Loan Purchase Agreement is true and correct.
Seller hereby acknowledges receipt of the Mortgage Loan Purchase
Price, which sum represents payment in full of the purchase price for all of
Seller's right, title and interest in and to Mortgage Loans having an aggregate
unpaid principal balance as of the Cut-off Date of $228,045,048 together with
related Mortgage Loan Documents (subject to the right of certain subservicers
listed on the Mortgage Loan Schedule attached to the Loan Purchase Agreement),
and all of Seller's right, title and interest in and to all insurance coverage,
with respect to the Mortgage Loans (and all proceeds thereof) and Seller's
interest in any Mortgaged Property that secures a Mortgage Loan but that has
been acquired by foreclosure or deed in lieu of foreclosure (collectively, the
"Mortgage Assets.")
Depositor represents and warrants to Seller, as of the date above
written, that each of the representations and warranties set forth in Section 5
of the Loan Purchase Agreement is true and correct.
Depositor hereby acknowledges receipt from Seller of (i) the
Mortgage Loans identified on Exhibit A to the Loan Purchase Agreement and (ii)
the Mortgage Assets.
Nothing in this Bill of Sale shall be construed to be a modification
of, or limitation on any provision of, the Loan Purchase Agreement, including
the representations, warranties and agreements set forth therein.
Unless otherwise defined herein, capitalized terms used in this Bill
of Sale shall have the meanings assigned to them in the Loan Purchase Agreement,
or if not defined in the Loan Purchase Agreement, the Pooling and Servicing
Agreement.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, Seller and Depositor have caused this Bill of
Sale to be executed and delivered by its respective officer thereunto duly
authorized as of the date above written.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Margaret Govern
---------------------------------------------
Its: Senior Vice President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ R. Douglas Donaldson
---------------------------------------------
Its: Treasurer
<PAGE>
POWER OF ATTORNEY
RECORDING REQUESTED BY:
LASALLE BANK NATIONAL ASSOCIATION
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LaSalle Bank National
Association, as seller under that certain Mortgage Loan Purchase Agreement dated
as of September 1, 2000 (the "Mortgage Loan Purchase Agreement"), does hereby
appoint ORIX REAL ESTATE CAPITAL MARKETS, LLC, in its capacity as servicer (the
"Servicer") under the Pooling and Servicing Agreement dated as of September 1,
2000, by and among Deutsche Mortgage & Asset Receiving Corporation, as
depositor, the Servicer, Orix Real Estate Capital Markets, LLC, as special
servicer, Wells Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank National
Association, as bond administrator, and the other parties named therein, as its
true and lawful attorney-in-fact for it and in its name, place, stead and for
its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable the Servicer to take such action as is necessary to effect
the delivery, assignment and/or recordation of any documents and/or
instruments relating to any Mortgage Loan (as defined in the
Mortgage Loan Purchase Agreement) which has not been delivered,
assigned or recorded at the time required for enforcement as
provided in the Mortgage Loan Purchase Agreement, giving and
granting unto the Servicer full power and authority to do and
perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or
confirming all that the Servicer shall lawfully do or cause to be
done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned caused this power of attorney to
be executed as of 11th day of September, 2000.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Margaret Govern
--------------------------------------
Name: Margaret Govern
Title: Senior Vice President
<PAGE>
POWER OF ATTORNEY
RECORDING REQUESTED BY:
LASALLE BANK NATIONAL ASSOCIATION
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, Maryland 21044
Attention: Corporate Trust Services (CMBS), COMM 2000-C1
--------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LaSalle Bank National
Association, as seller under that certain Mortgage Loan Purchase Agreement dated
as of September 1, 2000 (the "Mortgage Loan Purchase Agreement"), does hereby
appoint ORIX REAL ESTATE CAPITAL MARKETS, LLC, in its capacity as special
servicer (the "Special Servicer") under the Pooling and Servicing Agreement
dated as of September 1, 2000, by and among Deutsche Mortgage & Asset Receiving
Corporation, as depositor, Orix Real Estate Capital Markets, LLC, as servicer,
the Special Servicer, Wells Fargo Bank Minnesota, N.A., as trustee, LaSalle Bank
National Association, as bond administrator, and the other parties named
therein, as its true and lawful attorney-in-fact for it and in its name, place,
stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable the Special Servicer to take such action as is necessary to
effect the delivery, assignment and/or recordation of any documents
and/or instruments relating to any Mortgage Loan (as defined in the
Mortgage Loan Purchase Agreement) which has not been delivered,
assigned or recorded at the time required for enforcement as
provided in the Mortgage Loan Purchase Agreement, giving and
granting unto the Special Servicer full power and authority to do
and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or
confirming all that the Special Servicer shall lawfully do or cause
to be done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned caused this power of attorney to
be executed as of 11th day of September, 2000.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Margaret Govern
--------------------------------------
Name: Margaret Govern
Title: Senior Vice President
<PAGE>
EXHIBIT K
FORM OF REGULATION S TRANSFER CERTIFICATE
LaSalle Bank National Association,
as Bond Administrator and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attention: Corporate Trust Administration
Re: Transfer of COMM 2000-C1, Commercial Mortgage Pass-Through -
Certificates, Class [ ]
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of September 1, 2000 (the "Pooling and Servicing
Agreement"), by and among Deutsche Mortgage Asset & Receivables Corporation, as
depositor, Orix Real Estate Capital Markets, LLC, as servicer (the "Servicer"),
Orix Real Estate Capital Markets, LLC, as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as bond administrator (the "Bond
Administrator"), and Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), and the other parties named therein, on behalf of the holders of the
COMM 2000-C1, Commercial Mortgage Pass-Through Certificates, Class [___] (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to ______________ (the "Transferee") of $___________________
Certificate Balance of Certificates, in fully registered form (each, an
"Individual Certificate"), or a beneficial interest of such aggregate
Certificate Balance in the Regulation S Global Certificate (the "Global
Certificate") maintained by The Depository Trust Company or its successor as
Depositary under the Pooling and Servicing Agreement (such transferred interest,
in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling and Servicing Agreement and the Certificates and (i) with
respect to transfers made in accordance with Regulation S ("Regulation S")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person in the
United States;
[(2) at the time the buy order was originated, the Transferee was outside the
United States or the Transferor and any person acting on its behalf reasonably
believed that the Transferee was outside the United States;]*
[(2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither there undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States;]*
---------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Bond Administrator,
the Servicer and the Special Servicer.
_________________________________________
Transferor
By:______________________________________
Name:
Title:
Dated: _____________________, 20__
<PAGE>
EXHIBIT L
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to Section 5.02(c)(ii)(A) of
the Pooling and Servicing Agreement)
LaSalle Bank National Association,
as Bond Administrator and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attention: Corporate Trust Administration
Re: Transfer of COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates, Class [ ]
---------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
September 1, 2000, (the "Pooling and Servicing Agreement"), by and among
Deutsche Mortgage Asset & Receivables Corporation, as depositor, Orix Real
Estate Capital Markets , LLC, as servicer (the "Servicer"), Orix Real Estate
Capital Markets, LLC, as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as bond administrator (the "Bond Administrator") and Wells
Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and the other parties
named therein. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______________] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of Rule 144A Global
Certificate (CUSIP No. _____________) with the Depository in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for an interest in the Regulation S Global
Certificate (CUSIP No. ____________) to be held with [Euroclear] [Clearstream
Banking]* (Common Code) through the Depositary.
In connection with such request and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the Transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United
States,
[(2) at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any persons acting on its behalf reasonably
believed that the Transferee was outside the United States,]**
---------------
* Select appropriate depositary.
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Servicer, the Special
Servicer and the Bond Administrator.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: ____________________, 20__
<PAGE>
EXHIBIT M
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
LaSalle Bank National Association,
as Bond Administrator and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attention: Corporate Trust Administration
Re: Transfer of COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates Class [ ]
---------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
September 1, 2000 (the "Pooling and Servicing Agreement"), by and among Deutsche
Mortgage Asset & Receivables Corporation, as depositor, Orix Real Estate Capital
Markets, LLC, as servicer (the "Servicer"), Orix Real Estate Capital Markets,
LLC, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as bond administrator (the "Bond Administrator"), and Wells Fargo
Bank Minnesota, N.A, as trustee (the "Trustee"), and the other parties named
therein. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
The letter relates to U.S. $[_____________] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. _________) with the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Regulation S Global Certificate (Common Code No. _____).
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and, (i) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United
States,
[(2) at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States,]*
[(2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was pre-arranged with a buyer in
the United States,]*
---------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Bond Administrator,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: ____________________, 20__
<PAGE>
EXHIBIT N
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to Section 5.02(c)(ii)(C)
of the Pooling and Servicing Agreement)
LaSalle Bank National Association,
as Bond Administrator and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attention: Corporate Trust Administration
Re: Transfer of COMM 2000-C1 Commercial Mortgage Pass-Through
Certificates, Class [ ]
---------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
September 1, 2000 (the "Pooling and Servicing Agreement"), by and among Deutsche
Mortgage Asset & Receivables Corporation, as depositor, Orix Real Estate Capital
Markets, LLC, as servicer (the "Servicer"), Orix Real Estate Capital Markets,
LLC, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as bond administrator (the "Bond Administrator"), Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"), and the other parties named
therein. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
This letter relates to U.S. $[____________] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Regulation S
Global Certificate (CUSIP No. ____________) with [Euroclear] [Clearstream
Banking]* (Common Code _________) through the Depository in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest in the Certificates for an interest in the
Regulation 144A Global Certificate (CUSIP No. ___________).
---------------
* Select appropriate depositary.
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and (ii) Rule 144A under the Securities Act to a transferee
that the Transferor reasonably believes is purchasing the Certificates for its
own account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is "qualified institutional
buyer" within the meaning of Rule 144A, in each case 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 an jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Bond Administrator,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: ___________________, 20__
<PAGE>
<TABLE>
EXHIBIT O-1
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
AS OF __________
(PROPERTY LEVEL REPORT)
<CAPTION>
Operating Information Reflected As NOI or NCF
------------------------------------------------------------------------------------------------------------------------------------
P4 P9 P10 P52 P21 L8 P57 P44 P51 P45 P47 or P76 P48 or P77
------------------------------------------------------------------------------------------------------------------------------------
ORIGINAL UNDERWRITING
INFORMATION
------------------------------------------------------------------------------------------------------------------------------------
BASE YEAR
------------------------------------------------------------------------------------------------------------------------------------
LAST CURRENT ALLOCATED
PROPERTY ALLOCATED PAID ANNUAL FINANCIAL
PROPERTY INSPECTION LOAN THRU DEBT INFO AS % TOTAL $ (1)
ID CITY STATE DATE AMOUNT DATE SERVICE OF DATE OCC REVENUE NOI/NCF DSCR
------------------------------------------------------------------------------------------------------------------------------------
yyyymmdd yyyymmdd
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <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 CMSA Property File and CMSA Loan Periodic Update File.
Total: $ $ ** WA $ $ WA
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
P60 P66 P61 P63 or P80 P65 or P81 P53 P59 P54 P56 or P78 P58 or P79
------------------- ----------------------------------------- -------------------------------------------- ------------------
2nd Preceding Annual Operating Preceding Annual Operating
Information Information
As of Normalized As of Normalized
---------------------------------------------------------------- ------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FINANCIAL FINANCIAL
INFO AS % TOTAL $ (1) INFO AS % TOTAL $ (1)
OF DATE OCC REVENUE NOI/NCF DSCR OF DATE OCC REVENUE NOI/NCF DSCR
------------------------------------------------------------------------------------------------------------------------------------
yyyymmdd yyyymmdd
<S> <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 CMSA Property File and CMSA Loan Periodic Update File.
Total: WA $ $ WA WA $ $ WA
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
P73 P74 P30 P29 P68 P70 or P82 P72 or P83 (2)
------------------------------------------------------------------------------------------------------------------------------------
MOST RECENT FINANCIAL NET CHANGE
INFORMATION
*NORMALIZED OR ACTUAL PRECEDING & BASIS
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
%
FS START FS END OCC AS OF % TOTAL $ (1) % TOTAL (1)
DATE DATE DATE OCC REVENUE NOI/NCF DSCR OCC REVENUE DSCR
------------------------------------------------------------------------------------------------------------------------------------
yyyymmdd yyyymmdd yyyymmdd
------------------------------------------------------------------------------------------------------------------------------------
<S> <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 CMSA Property File and CMSA Loan Periodic Update File.
------------------------------------------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ WA
(1) DSCR should match to Operating Statement Analysis Report and is normally calculated using NOI or NCF / Debt Servicce times the
allocated loan percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant and applicable.
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O-2
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF __________
(LOAN LEVEL REPORT)
<CAPTION>
Operating Information Reflected As NOI or NCF
------------------------------------------------------------------------------------------------------------------------------------
S62 OR
S4 S55 S61 S57 S58 S83 L8 L7 L37 L39 L38
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=
a+b+c+d
------------------------------------------------------------------------------------------------------------------------------------
ENDING OTHER
SQ. FT. PAID SCHEDULED TOTAL P & I EXPENSE TOTAL T & I
LOAN PROPERTY PROPERTY OR THRU LOAN ADVANCES ADVANCE ADVANCES TOTAL
PROSPECTUS ID NAME TYPE CITY STATE UNITS DATE BALANCE OUTSTANDING OUTSTANDING OUTSTANDING EXPOSURE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURENT AND AT SPECIAL SERVICER
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
L54 or L56 or
L68/L92 or L70/L93 or
L25 L10 L11 L58 or L73 L96 L97 L74 L75 L99
------------------------------------------------------------------------------------------------------------------------------------
(f) (.90*f) - e
------------------------------------------------------------------------------------------------------------------------------------
APPRAISAL
CURRENT BPO OR LOSS USING TOTAL APPRAISAL
CURRENT INTEREST MATURITY LTM NOI/NCF LTM LTM DSCR VALUATION INTERNAL 90% APPR. OR REDUCTION
MONTHLY P&I RATE DATE DATE NOI/NCF (NOI/NCF) DATE VALUE** BPO (F) REALIZED
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURENT AND AT SPECIAL SERVICER
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
L77 L79 L76
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
DATE ASSET
EXPECTED TO
TRANSFER BE RESOLVED WORKOUT
DATE OR FORECLOSED STRATEGY* COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURENT AND AT SPECIAL SERVICER
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
*Workout Stretegy should match the CMSA Loan Periodic Update File using abbreviated words in place of a code number such as
(FCL - In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale.
BK - Bankruptcy, PP - Payment Plan, TBD - To be determined etc...). It is possible to combine the status codes if the loan is
going in more than one direction (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO).
**BPO - Broker opinion
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O-3
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF __________
(LOAN LEVEL REPORT)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 L49 L48 L7* L7* L50* L50* L25* L25* L11*
------------------------------------------------------------------------------------------------------------------------------------
BALANCE
EXTENSION WHEN BALANCE AT
MOD / PER DOCS EFFECTIVE SENT TO THE EFFECTIVE # MTHS
PROSPECTUS EXTENSION OR DATE OF SPECIAL DATE OF OLD FOR RATE NEW OLD NEW OLD
ID CITY STATE FLAG SERVICER MODIFICATION SERVICER MODIFICATION RATE CHANGE RATE P&I P&I MATURITY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
INFORMATION IS AS OF MODIFICATION. EACH LINE SHOULD NOT CHANGE IN THE FUTURE. ONLY NEW MODIFICATIONS SHOULD BE ADDED.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
L11* L47
------------------------------------------------------------------------------------------------------------------------------------
TOTAL # (1) (2) EST. FUTURE
MTHS FOR REALIZED INTEREST LOSS
NEW CHANGE LOSS TO TO TRUST $
MATURITY OF MOD TRUST $ (RATE REDUCTION) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
INFORMATION IS AS OF MODIFICATION. EACH LINE SHOULD NOT CHANGE IN THE FUTURE. ONLY NEW MODIFICATIONS SHOULD BE ADDED.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
*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.
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O-4
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF __________
(LOAN LEVEL REPORT)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L75 L29 L45 L7
------------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e)
------------------------------------------------------------------------------------------------------------------------------------
LATEST
% APPRAISAL
RECEIVED OR EFFECTIVE NET AMT ENDING
PROSPECTUS PROPERTY PROPERTY FROM BROKERS DATE OF SALES RECEIVED SCHEDULED
LOAN ID NAME TYPE CITY STATE LIQUIDATION OPINION LIQUIDATION PRICE FROM SALE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
L37 L39+L38 L47
------------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h) (i)=d-(f+g+h) (k) (m) (n)=k+m (o)=n/e
------------------------------------------------------------------------------------------------------------------------------------
TOTAL T&I DATE OF
AND OTHER DATE MINOR
TOTAL P&I EXPENSE SERVICING LOSS ADJ TOTAL LOSS LOSS % OF
ADVANCE ADVANCE FEES NET REALIZED PASSED MINOR ADJ PASSED WITH SCHEDULED
OUTSTANDING OUTSTANDING EXPENSE PROCEEDS LOSS THRU TO TRUST THRU ADJUSTMENT BALANCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
ALL INFORMATION IS AFROM THE LIQUIDATION DATE AND DOES NOT NEED TO BE UPDATED.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer.
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O-5
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
AS OF __________
(PROPERTY LEVEL REPORT)
<CAPTION>
Operating Information Reflected As NOI or NCF
------------------------------------------------------------------------------------------------------------------------------------
P4 P7 P13 P9 P10 P17 L8 P21 L37 L39 L38
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=
a+b+c+d
------------------------------------------------------------------------------------------------------------------------------------
ALLOCATED
ENDING OTHER
SQ. FT. PAID SCHEDULED TOTAL P & I EXPENSE TOTAL T & I
PROPERTY PROPERTY PROPERTY OR THRU LOAN ADVANCES ADVANCE ADVANCE TOTAL
ID NAME TYPE CITY STATE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING OUTSTANDING EXPOSURE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
P58 or
P53 or P72/P79 or
L25 L11 P74 P83 P24 P25 L99
------------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h)=(.90*g)-e
------------------------------------------------------------------------------------------------------------------------------------
APPRAISAL TOTAL
LTM BPO OR APPRAISAL BPO LOSS USING APPRAISAL
CURRENT MATURITY NOI/NCF LTM DSCR VALUATION INTERNAL VALUE OR INTERNAL 90% APPR. REDUCTION
MONTHLY P&I DATE DATE (NOI/NCF) DATE SOURCE (1) VALUE OR BPO (F) REALIZED
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
L77 P28 P26
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
REO DATE ASSET
TRANSFER ACQUISITION EXPECTED TO
DATE DATE BE RESOLVED COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
REO'S DATA REFLECTED AT THE PROPERTY LEVEL FOR RELATIONSHIPS WITH MORE THAN ONE (1) PROPERTY SHOULD USE THE ALLOCATED ENDING
SCHEDULED LOAN AMOUNT, AND PRORATE ALL ADVANCES AND EXPENSES OR OTHER LOAN LEVEL DATA AS APPROPRIATE.
(1) USE THE FOLLOWING CODES; APP. - APPRAISAL, BPO - BROKERS OPINION, INT - INTERNAL VALUE.
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O-6
CMSA INVESTOR REPORTING PACKAGE
SERVICER WATCH LIST
AS OF _______________
(LOAN 3LEVEL REPORT
<CAPTION>
Operating Information Reflected As NOI______ or NCF________
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93 L70/L97
------------------------------------------------------------------------------------------------------------------------------------
ENDING PRECEDING MOST
SCHEDULED PAID FISCAL YR RECENT
PROSPECTUS PROPERTY PROPERTY LOAN THRU MATURITY DSCR DSCR COMMENT / ACTION
LOAN ID NAME TYPE CITY STATE BALANCE DATE DATE NOI/NCF NOI/NCF TO BE TAKEN
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans on watch list in descending balance order.
Comment section should include reason and other pertinent information.
Should not include loans that are specially serviced.
WATCH LIST SELECTION CRITERIA SHOULD BE FOOTNOTED ON THE REPORT. THE CRITERIA MAY BE DICTATED AS PER THE PSA OR THE SERVICER'S
INTERNAL POLICY.
Total: $
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O-7
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
<CAPTION>
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
<FN>
(1) Total $ amount of Capital Reserves required annually by loan documents,
excl. Leasing Commission and TI's
</FN>
</TABLE>
<TABLE>
<CAPTION>
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / /XX VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent (3)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
<FN>
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for Vacancy Loss
</FN>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Capital Expenditures
Extraordinary Capital Expenditures
*TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
<PAGE>
<TABLE>
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT (includes Mobile Home Parks)
AS OF MM/DD/YY
PROPERTY OVERVIEW
<CAPTION>
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
<FN>
(1) Total $ amount of Capital Reserves required annually by loan documents.
</FN>
</TABLE>
<TABLE>
<CAPTION>
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / /XX VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent (3)
Laundry/Vending Income
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
<FN>
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for Vacancy Loss
</FN>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/Debt Service)
*DSCR: (NCF/Debt Service)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
<PAGE>
<TABLE>
LODGING OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
PROPERTY OVERVIEW
<CAPTION>
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Daily Rate
Rev per Av. Room
<FN>
(1) Total $ amount of Capital Reserves required annually by loan documents
</FN>
</TABLE>
<TABLE>
<CAPTION>
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / /XX VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
*DEPARTMENTAL REVENUE
<FN>
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
</FN>
OPERATING EXPENSES:
DEPARTMENTAL
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
GENERAL/UNALLOCATED
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
OPERATING EXPENSE RATIO
(=Departmental Revenue/(Dept. Exp. + General Exp.))
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% DEPT REVENUE, DEPT EXPENSES, GENERAL EXPENSES OR TOTAL CAPITAL
ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
<PAGE>
HEALTHCARE OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
<TABLE>
<CAPTION>
PROPERTY OVERVIEW
Prospectus ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
<FN>
(1) Total $ amount of Capital Reserves required annually by loan documents
</FN>
</TABLE>
<TABLE>
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / /XX VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Room Revenue
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Private Pay (3)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
*EFFECTIVE GROSS INCOME
<FN>
(2) Servicer will not be expected to "Normalize" these TTM/YTD numbers.
(3) Use either Gross Potential (with Vacancy Loss) or
Private Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
</FN>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
<PAGE>
<TABLE>
<CAPTION>
Multi Family Multi Family Commercial Commercial Industrial/ Commercial Commercial Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Multi Family Mobile Home Office Retail Warehouse Mixed Use Self Storage Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Revenue Legend
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
GPR Gross Potential Rent x x x x x x x x
VAC Vacancy Loss x x x x x x x x
BR Base Rent x x x x x x x
ER Expense Reimbursements x x x x
PR Percentage Rent x x
LV Laundry/Vending Income x x
PI Parking Income x x x x
OI Other Income x x x x x x x x x
RMRV Room Revenue x
FBV Food & Bev Revenues x
TLRV Telephone Revenue x x
ODR Other Departmental Revenue x
PRI Private Pay x
MED Medicare/Medicaid Revenues x
NUR Nursing/Medical Income x
MLS Meals Income x
</TABLE>
<TABLE>
<CAPTION>
Revenue Line Items
Multi Family Multi Family Commercial Commercial Industrial/ Commercial Commercial Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Multi Family Mobile Home Office Retail Warehouse Mixed Use Self Storage Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Application Fees OI OI OI OI OI OI OI ********* *********
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Base Rent BR BR BR BR BR BR BR ********* *********
Beverage Revenue ********* ********* ********* ********* ********* ********* ********* FBV *********
Box & Lock Sales ********* ********* ********* ********* ********* ********* OI ********* *********
Cable OI OI ********* ********* ********* ********* ********* ********* *********
CAM ********* ********* ER ER ********* ER ********* ********* *********
Club House Rental OI OI ********* ********* ********* ********* ********* ********* *********
Concessions VAC VAC VAC VAC VAC VAC VAC ********* VAC
Employee Rent BR BR ********* ********* ********* ********* ********* ********* *********
Escalation Income ********* BR BR BR BR BR BR ********* *********
Food & Beverage Revenues ********* ********* ********* ********* ********* ********* ********* FBV MLS
Forfeited Security Deposits OI OI OI OI OI OI OI OI OI
Gain on Sale ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Garage PI PI PI PI ********* PI ********* OI OI
Gross Potential Rent GPR GPR GPR GPR GPR GPR GPR ********* GPR
Gross Rent BR BR BR BR BR BR BR ********* *********
Insurance Proceeds ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Interest Income ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Laundry LV LV ********* OI ********* OI ********* ********* *********
Laundry/Vending LV LV ********* OI ********* OI ********* ********* *********
Meals Income ********* ********* ********* ********* ********* ********* ********* ********* MLS
Medicare/Medicaid Revenues ********* ********* ********* ********* ********* ********* ********* ********* MED
Miscellaneous Income OI OI OI OI OI OI OI OI OI
Mobile Home Sales ********* ELIMINATE ********* ********* ********* ********* ********* ********* *********
NSF Fees OI OI OI OI OI OI OI OI OI
Nursing/Medical ********* ********* ********* ********* ********* ********* ********* ********* NUR
Other Departmental Revenues ********* ********* ********* ********* ********* ********* ********* ODR *********
Other Income OI OI OI OI OI OI OI OI OI
Pad Rental ********* BR ********* ********* ********* ********* ********* ********* *********
Parking Income PI PI PI PI OI PI OI OI OI
Past Tenants Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Percentage Rent ********* ********* ********* PR ********* PR ********* ********* *********
Prepaid Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Private Pay ********* ********* ********* ********* ********* ********* ********* ********* PRI
Reimbursments OI OI ER ER ER ER ********* ********* *********
Rent BR BR BR BR BR BR BR ********* *********
Rent Loss ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Rent on Park Owned Homes ********* BR ********* ********* ********* ********* ********* ********* *********
Room Revenue ********* ********* ********* ********* ********* ********* ********* RMRV *********
Sales OI OI OI OI ********* ********* ********* ********* *********
Security Deposits Collected ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
Security Deposits Returned ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
Storage OI OI OI OI OI OI OI ********* *********
Tax Reimb ********* ********* ER ER ER ER ********* ********* *********
Telephone Commissions ********* ********* ********* ********* ********* ********* ********* TLRV *********
Telephone Revenue ********* ********* ********* ********* ********* ********* ********* TLRV *********
Temporary Tenants OI OI OI OI OI OI OI ********* *********
Utilities ********* ******** ER ER ER ER ********* ********* *********
Vacancy Loss VAC VAC VAC VAC VAC VAC VAC VAC VAC
Vending LV LV OI OI OI OI OI OI OI
</TABLE>
<PAGE>
CMSA Investor Reporting Package
Master Coding Matrix (cont'd)
<TABLE>
<CAPTION>
Multi Family Multi Family Commercial Commercial Industrial/ Commercial Commercial Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Multi Family Mobile Home Office Retail Warehouse Mixed Use Self Storage Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Expense Legend
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
RET Real Estate Taxes x x x x x x x x x
PINS Property Insurance x x x x x x x x x
UTL Utilities x x x x x x x x x
R&M Repairs and Maintenance x x x x x x x x x
FFEE Franchise Fees x
JAN Janitorial x x x x
MFEE Management Fees x x x x x x x x x
P&B Payroll & Benefits x x x x x x x x x
A&M Advertising & Marketing x x x x x x x x x
PFEE Professional Fees x x x x x x x x x
G&A General and Administrative x x x x x x x x x
OEXP Other Expenses x x x x x x x x x
GDR Ground Rent x x x x x x x x x
RMSE Room Expense (Departmental)
RMSHK Room Expense - Housekeeping x
F&B Food & Beverage (Departmental) x
MLSE Meals Expense x
DTEL Telephone (Departmental) x
ODE Other Departmental Expense x x x x x
LC Leasing Commissions x x x x x
TI Tenant Improvements
CAPEX Capital Expenditures x x x x x x x x x
ECAPEX Extraordinary Capital x x x x x x x x x
Expenditures
</TABLE>
<TABLE>
<CAPTION>
Expense Line Items
Multi Family Multi Family Commercial Commercial Industrial/ Commercial Commercial Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Multi Family Mobile Home Office Retail Warehouse Mixed Use Self Storage Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
401K P&B P&B P&B P&B P&B P&B P&B P&B P&B
Accounting Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Administrative Fee G&A G&A G&A G&A G&A G&A G&A G&A G&A
Advalorem Tax G&A G&A G&A G&A G&A G&A G&A G&A G&A
Advertising A&M A&M A&M A&M A&M A&M A&M A&M A&M
Advertising & Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
Alarm System G&A G&A G&A G&A G&A G&A G&A G&A G&A
Amortization ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Ancillary Expense OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Answering Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
Apartment Finder/Guide A&M ********* ********* ********* ********* ********* ********* ********* *********
Asset Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
Auto Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Bank Charges G&A G&A G&A G&A G&A G&A G&A G&A G&A
Banners A&M A&M A&M A&M A&M A&M A&M A&M A&M
Bonuses P&B P&B P&B P&B P&B P&B P&B P&B P&B
Bookkeeping Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Brochures A&M A&M A&M A&M A&M A&M A&M A&M A&M
Business License G&A G&A G&A G&A G&A G&A G&A G&A G&A
Cable G&A G&A G&A G&A G&A G&A G&A G&A G&A
CAM R&M R&M R&M R&M R&M R&M R&M R&M R&M
Capital Expenditures CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
Cleaning R&M R&M JAN JAN JAN JAN R&M R&M RMSHK
Commissions G&A G&A G&A G&A G&A G&A G&A G&A G&A
Computer Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
Contract Work P&B P&B P&B P&B P&B P&B P&B P&B P&B
Courtesy Patrol G&A G&A G&A G&A G&A G&A G&A G&A G&A
Credit Card Fees ********* ********* ********* ********* ********* ********* ********* G&A *********
Credit Check G&A G&A G&A G&A G&A G&A G&A G&A G&A
Depreciation ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Education G&A G&A G&A G&A G&A G&A G&A G&A G&A
Electrical R&M R&M R&M R&M R&M R&M R&M R&M R&M
Electricity UTL UTL UTL UTL UTL UTL UTL UTL UTL
Elevator R&M R&M R&M R&M R&M R&M R&M R&M R&M
Employee Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
Employee Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
Entertainment G&A G&A G&A G&A G&A G&A G&A G&A G&A
Eviction Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
Extraordinary Capital ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX
Expenditures
Exterminating Service R&M R&M R&M R&M R&M R&M R&M R&M R&M
FF & E Reserve CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
FICA P&B P&B P&B P&B P&B P&B P&B P&B P&B
Financing Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Flood Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CMSA Investor Reporting Package
Master Coding Matrix (con't)
Expense Line Items
(continued)
Multi Family Multi Family Commercial Commercial Industrial/ Commercial Commercial Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Multi Family Mobile Home Office Retail Warehouse Mixed Use Self Storage Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Floor Covering Replacement R&M R&M R&M R&M R&M R&M R&M R&M R&M
Food & Beverage Expense ********* ********* ********* ********* ********* ********* ********* F&B *********
(Departmental)
Franchise Fees ********* ********* ********* ********* ********* ********* ********* FFEE *********
Freight & Shipping G&A G&A G&A G&A G&A G&A G&A G&A G&A
Gas UTL UTL UTL UTL UTL UTL UTL UTL UTL
General & Administrative G&A G&A G&A G&A G&A G&A G&A G&A G&A
Ground Rent GDR GDR GDR GDR GDR GDR GDR GDR GDR
Hazard Liability PINS PINS PINS PINS PINS PINS PINS PINS PINS
Health Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
HVAC R&M R&M R&M R&M R&M R&M R&M R&M R&M
Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
Interest ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Janitorial R&M R&M JAN JAN JAN JAN ********* ********* RMSHK
Land Lease GDR GDR GDR GDR GDR GDR GDR GDR GDR
Landscaping (Exterior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
Landscaping/Plants (Interior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
Leased Equipment G&A G&A G&A G&A G&A G&A G&A G&A G&A
Leasing Comissions ********* ********* LC LC LC LC LC ********* *********
Leasing Office Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
Legal Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Licenses G&A G&A G&A G&A G&A G&A G&A G&A G&A
Life Insurance ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Life Safety G&A G&A G&A G&A G&A G&A G&A G&A G&A
Loan Principal ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Locks/Keys R&M R&M R&M R&M R&M R&M R&M R&M R&M
Maid Service R&M R&M JAN JAN JAN JAN ********* ********* RMSHK
Make Ready R&M R&M R&M R&M R&M R&M R&M R&M R&M
Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
Manager Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
Meals Expense ********* ********* ********* ********* ********* ********* ********* FMB MLSE
Mechanical R&M R&M R&M R&M R&M R&M R&M R&M R&M
Media Commissions A&M A&M A&M A&M A&M A&M A&M A&M A&M
Mileage G&A G&A G&A G&A G&A G&A G&A G&A G&A
Miscellaneous OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Miscellaneous G & A G&A G&A G&A G&A G&A G&A G&A G&A G&A
Model Apartment G&A ********* ********* ********* ********* *********
Newspaper A&M A&M A&M A&M A&M A&M A&M A&M A&M
Office Supplies G&A G&A G&A G&A G&A G&A G&A G&A G&A
Other Departmental Expense ********* ********* ********* ********* ********* ********* ********* ODE *********
Other Expenses OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Owners Draw ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Painting R&M R&M R&M R&M R&M R&M R&M R&M R&M
Parking Lot R&M R&M R&M R&M R&M R&M R&M R&M R&M
Partnership Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Payroll & Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
Payroll Taxes P&B P&B P&B P&B P&B P&B P&B P&B P&B
Permits G&A G&A G&A G&A G&A G&A G&A G&A G&A
Personal Property Taxes G&A G&A G&A G&A G&A G&A G&A G&A G&A
Pest Control R&M R&M R&M R&M R&M R&M R&M R&M R&M
Plumbing R&M R&M R&M R&M R&M R&M R&M R&M R&M
Pool R&M R&M ********* ********* ********* R&M ********* R&M R&M
Postage G&A G&A G&A G&A G&A G&A G&A G&A G&A
Printing G&A G&A G&A G&A G&A G&A G&A G&A G&A
Professional Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Promotions A&M A&M A&M A&M A&M A&M A&M A&M A&M
Property Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
Real Estate Taxes RET RET RET RET RET RET RET RET RET
Repair Escrow CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
Repairs & Maintenance R&M R&M R&M R&M R&M R&M R&M R&M R&M
Room Expense (Departmental) ********* ********* ********* ********* ********* ********* ********* RMSE *********
Room Expense-Housekeeping ********* ********* ********* ********* ********* ********* ********* RMSE ***RMSHK*
Rubbish Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
Scavenger R&M R&M R&M R&M R&M R&M R&M R&M R&M
Security G&A G&A G&A G&A G&A G&A G&A G&A G&A
Sewer UTL UTL UTL UTL UTL UTL UTL UTL UTL
Signage A&M A&M A&M A&M A&M A&M A&M A&M A&M
Snow Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
Subscriptions/Dues G&A G&A G&A G&A G&A G&A G&A G&A G&A
Telephone G&A G&A G&A G&A G&A G&A G&A ********* G&A
Telephone (Departmental) ********* ********* ********* ********* ********* ********* ********* DTEL *********
Temporary Help P&B P&B P&B P&B P&B P&B P&B P&B P&B
</TABLE>
<PAGE>
CMSA Investor Reporting Package
Master Coding Matrix (con't)
<TABLE>
<CAPTION>
Expense Line Items
(continued)
Multi Family Multi Family Commercial Commercial Industrial/ Commercial Commercial Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Multi Family Mobile Home Office Retail Warehouse Mixed Use Self Storage Lodging Health Care
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Tenant Improvements ********* ******** TI TI TI TI TI ********* *********
Trash Removal UTL UTL UTL UTL UTL UTL UTL UTL UTL
Travel G&A G&A G&A G&A G&A G&A G&A G&A G&A
Turnover R&M R&M TI TI TI TI TI ********* R&M
Unemployment Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
Uniform Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
Utilities UTL UTL UTL UTL UTL UTL UTL UTL UTL
Utility Vehicle G&A G&A G&A G&A G&A G&A G&A G&A G&A
Vehicle Lease G&A G&A G&A G&A G&A G&A G&A G&A G&A
Water UTL UTL UTL UTL UTL UTL UTL UTL UTL
Worker's Comp P&B P&B P&B P&B P&B P&B P&B P&B P&B
Yellow Pages A&M A&M A&M A&M A&M A&M A&M A&M A&M
</TABLE>
<PAGE>
EXHIBIT O-8
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents,
excl. Leasing Commission and TI's
<TABLE>
<CAPTION>
INCOME: YYYY
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED NOTES
-------- ---------- ---------- -----
<S> <C> <C> <C> <C>
Gross Potential Rent (2)
Less: Vacancy Loss
OR
Base Rent (2)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
EFFECTIVE GROSS INCOME
<FN>
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative
$amt for Vacancy Loss
</FN>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses For self-storage include franchise fees
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions (3)
Tenant Improvements (3)
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
<FN>
(3) Actual current yr, but normalize for annual if possible via contractual,
U/W or other data
</FN>
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
<PAGE>
MULTIFAMILY NOI ADJUSTMENT WORKSHEET (includes Mobile Home Parks)
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
<TABLE>
<CAPTION>
INCOME: YYYY
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED NOTES
-------- ---------- ---------- -----
<S> <C> <C> <C> <C>
Statement Classification
Gross Potential Rent (2) Include Pad/RV rent
Less: Vacancy Loss
OR
Base Rent (2)
Laundry/Vending Income
Parking Income
Other Income Include forfeited security/late fees/pet
EFFECTIVE GROSS INCOME
<FN>
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $
amt for Vacancy Loss
</FN>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
<PAGE>
LODGING NOI ADJUSTMENT WORKSHEET
as of MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Daily Rate
Rev per Av. Room
(1) Total $ amount of Capital Reserves required annually by loan documents.
<TABLE>
<CAPTION>
INCOME: YYYY
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED NOTES
-------- ---------- ---------- -----
<S> <C> <C> <C> <C>
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
DEPARTMENTAL REVENUE: (2)
<FN>
(2) Report Departmental Revenue as EGI for CMSA Loan Periodic and Property files
</FN>
OPERATING EXPENSES:
DEPARTMENTAL
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
GENERAL/UNALLOCATED
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
OPERATING EXPENSE RATIO
(=Departmental Revenue/(Dept. Exp. + General Exp.))
NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
<PAGE>
HEALTHCARE NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit, etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
<TABLE>
<CAPTION>
INCOME: YYYY
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED NOTES
-------- ---------- ---------- -----
<S> <C> <C> <C> <C>
Gross Potential Rent (2)
Less: Vacancy Loss
OR
Private Pay (2)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
EFFECTIVE GROSS INCOME
<FN>
(2) Use either Gross Potential (with Vacancy Loss) or Private
Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
</FN>
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: Comments
EXPENSE: Comments
CAPITAL ITEMS: Comments
<PAGE>
EXHIBIT O-9
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period
Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic
tape or diskette)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the
format of LO(36), YM(28), 7(12), O(3). If manually
derived, the Cutoff Date should be the start date
for period counting.
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The
Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment
Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See
Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance
Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original Balance
Allowed Per The Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At
Cutoff
Remaining Amort Term At Contribution 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At
Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Contribution
Scheduled Principal Balance At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan
At Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To
The Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
Periodic P&I Payment At Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at
Contribution
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The Mortgage
Loan
Property Name 55 AN Text P7 - If Multiple properties print "Various"
Property Address 56 AN Text P8 - If Multiple properties print "Various"
Property City 57 AN Text P9 - If Multiple properties have the same city then
print the city, otherwise print "Various". Missing
information print "Incomplete"
Property State 58 AN Text P10 - If Multiple properties have the same state then
print the state, otherwise print "XX" to represent
various. Missing information print "ZZ"
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code
then print the zip code, otherwise print "Various".
Missing information print "Incomplete"
Property County 60 AN Text P12 - If Multiple properties have the same county then
print the county, otherwise print "Various". Missing
information print "Incomplete"
Property Type Code 61 AN MF P13 - If Multiple properties have the same property
type code then print the property code, otherwise
print "XX" to represent various. Missing
information print "ZZ"
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same
Property Type, sum the values, if missing any leave
empty
# Of Units/Beds/Rooms At Contribution 63 Numeric 75 P17 - For Multiple properties, if all the same
Property Type, sum the values, if missing any leave
empty
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year Built
then print Year Built else leave empty
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using
NOI. Should match the prospectus if available.
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values , if
missing any then leave empty
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Physical Occupancy At Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing one
then leave empty
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
Operating Expenses At Contribution 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
Contribution Financials As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 - If
Multiple properties and any one property is "Y" or
"S" print "Y"
Cross-Collateralized Loan Grouping 75 AN Text P6 - All Loans With The Same Value Are Crossed, For
example : "X02-1" would be populated in this field
for all related loans, "X02-2" would be populated
for the next group of related loans.
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes
and Insurance. If any property has a value > 0 in
P23, this field should be "Y"
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date
Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was last
changed by loan
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Net Cash Flow At Contribution.
Should match the prospectus if available.
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using
NCF to calculate. Should match the prospectus if
available.
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Loan Contributor to Securitization 86 AN Text Name of entity ultimately responsible for the reps and
warranties of the loan contributed
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
</TABLE>
<PAGE>
ROUNDING CODE ARM INDEX CODE
LEGEND LEGEND
------------- --------------
1 Unrounded A 11 FHLB COFI (1 Month)
2 Nearest Percentage Increment B 11 FHLB COFI (6 Month)
3 Up To Nearest Percentage Increment C 1 Year CMT Weekly Average Treasury
4 Down To Nearest Percentage Increment D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text
Description
PROPERTY TYPES CODE PAYMENT TYPE CODE
LEGEND LEGEND
------------------- -----------------
MF Multifamily 1 Fully Amortizing
RT Retail 2 Amortizing Balloon
HC Health Care 3 Interest Only/Balloon
IN Industrial 4 Interest Only/Amortizing
WH Warehouse 5 Interest Only/Amortizing/Balloon
MH Mobile Home Park 6 Principal Only
OF Office 7 Hyper-Amortization
MU Mixed Use 9 Other
LO Lodging
SS Self Storage
OT Other
SE Securities
DSCR INDICATOR
LEGEND
--------------
P Partial - Not all properties received financials, servicer to leave empty
A Average - Not all properties received financials, servicer allocates Debt
Service only to properties where financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer allocates 100%
of Debt Service to all properties where financials are received.
N None Collected - no financials were received
C Consolidated-All properties reported on 1 "rolled up" financial from the
borrower
<PAGE>
EXHIBIT O-10
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period
Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic
tape or diskette)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of current
period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current period
that is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency < the date
the loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate The
Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc Of
The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period that goes to the trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current Period
that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For Current
Period for the trust
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For
The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by Servicer
per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction - The
difference between a full advance and the reduced
advance is the ASER or as defined in the Trust
documents
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most
Recent ASER Date. Field not considered applicable to
ASER.)
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement
Reduction
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of
The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else
"N")
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date then
print that date otherwise leave empty
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same date then
print that date otherwise leave empty
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted to
the Trust per the Trust Documents
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted from
the Trust per the Trust Documents
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received (as defined in Trust documents)
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Operating Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Preceding Fiscal Yr Debt
Svc Cvrge Ratio using NOI
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use weighted average by
using the calculation [Current Allocated % (Prop) *
Occupancy (Oper)] for each Property, if missing any
then leave empty
Preceding Fiscal Year Financial As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year Operating 60 Numeric 1000.00 P62 - If Multiple properties then sum the value, if
Expenses missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year Debt Service 62 Numeric 1000.00 P64 - If Multiple properties then sum the value, if
Amount missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Second Preceding Fiscal
Year Debt Service Coverage Ratio using NOI
Second Preceding Fiscal Year Physical 64 Numeric 0.85 P66 - If Multiple properties, Use weighted average by
Occupancy using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any
then leave empty
Second Preceding Fiscal Year Financial As of 65 AN YYYYMMDD P60 - If Multiple properties and all the same then
Date print the date, if missing any then leave empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Most Recent Debt Service
Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any
then leave empty
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the value, if
missing any then leave empty
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Special Servicer Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary
Servicer
Date Asset Expected to Be Resolved or 79 AN YYYYMMDD P26 - If Multiple properties then print the latest
Foreclosed date from the affiliated properties. If in
Foreclosure - Expected Date of Foreclosure and if
REO - Expected Sale Date.
Blank 80 AN Blank Left blank on purpose. (Note : was previously Year
Renovated. Use the Property File field 15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date will
be the same as setup file unless the loan is
modified and a new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date, Check
Start & End Date Applies to field L66 to L73. If
Multiple properties and all the same then print the
value, if missing any or if the values are not the
same, then leave empty
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information changed last
in the setup file by loan
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties were
contributed. For Multiple properties print the
latest date from the affiliated properties
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying the Mortgage
Loan
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial period. See
NOI/NCF Indicator Legend. P84 - If Multiple
Properties and all the same then print value, if
missing any or if the values are not the same, then
leave empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower- empty if
never assumed
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow related to
Financial As of Date L58. If Multiple properties
then sum the value, if missing any then populate
using the "DSCR Indicator Legend" rule
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date L58. If
Multiple properties populate using the "DSCR
Indicator Legend" rule.
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash Flow
related to Financial As of Date L65. If Multiple
properties then sum the value, if missing any then
populate using the "DSCR Indicator Legend" rule
Second Preceding Fiscal Year DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service
Coverage Ratio using Net Cash Flow related to
Financial As of Date L65. If Multiple properties
populate using the "DSCR Indicator Legend" rule.
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to Financial
As of Ending Date L73. If Multiple properties then
sum the value, if missing any then populate using
the "DSCR Indicator Legend" rule
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio using
Net Cash Flow related to Financial As of Ending Date
L73. If Multiple properties populate using the
"DSCR Indicator Legend" rule.
Defeasance Status 98 AN Text See Defeasance Status Legend
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the principal
balance over the defined appraisal % or as defined
in the trust documents
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
</TABLE>
<PAGE>
STATUS OF MORTGAGE LOAN
WORKOUT STRATEGY CODE LEGEND LEGEND
---------------------------- -----------------------
1 Modification A Payment Not Received But Still in
2 Foreclosure Grace Period
3 Bankruptcy B Late Payment But Less Than 30 days
4 Extension Delinquent
5 Note Sale 0 Current
6 DPO 1 30-59 Days Delinquent
7 REO 2 60-89 Days Delinquent
8 Resolved 3 90+ Days Delinquent
9 Pending Return to Master 4 Assumed Scheduled Payment
Servicer (Performing Matured Balloon)
10 Deed in Lieu Of Foreclosure 7 Foreclosure
11 Full Payoff 9 REO
12 Reps and Warranties
13 Other or TBD
LIQUIDATION/PREPAYMENT CODE MODIFICATION CODE
LEGEND LEGEND
--------------------------- -----------------
1 Partial Liq'n (Curtailment) 1 Maturity Date Extension
2 Payoff Prior To Maturity 2 Amortization Change
3 Disposition 3 Principal Write-Off
4 Repurchase/Substitution 4 Combination
5 Full Payoff At Maturity
6 DPO
7 Liquidation
8 Payoff w/penalty
9 Payoff w/yield Maintenance
10 Curtailment w/Penalty
11 Curtailment w/Yield Maintenance
DSCR INDICATOR
LEGEND
--------------
P Partial - Not all properties received financials, servicer to leave empty
A Average - Not all properties received financials, servicer allocates Debt
Service only to properties where financials are received.
F Full- All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer allocates 100%
of Debt Service to all properties where financials are received.
N None Collected - no financials were received
C Consolidated - All properties reported on one "rolled up" financial from the
borrower
DEFEASANCE STATUS NOI/NCF INDICATOR
LEGEND LEGEND
----------------- -----------------
P Partial Defeasance CMSA Calculated Using CMSA standard
F Full Defeasance PSA Calculated using a definition
N No Defeasance Occurred given in the PSA
X Defeasance not Allowable U/W Calcualted using the underwriting
method
<PAGE>
EXHIBIT O-11
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period
Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic
tape or diskette)
<TABLE>
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
---------- ------ ---- ------- -------------------- ----------
<S> <C> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To S3, L3
Each Collateral Item in a Pool
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To S4, L4
Each Collateral Item In The Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Crossed, S75
For example: "X02-1" would be populated
in this field for all related loans,
"X02-2" would be populated for the next
group of related loans.
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial
Release, 5= Released, 6= Same as at
Contribution
Allocated Percentage of Loan at Contribution 19 Numeric 0.75 Issuer to allocate loan % attributable to
property for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in
by Issuer or Underwriter, use
Underwritting NOI or NCF to calculate
Current Allocated Ending Scheduled Loan 21 Numeric 5900900.00 Calculation based on Current Allocated L7
Amount Percentage and Current Ending Scheduled
Principal Balance (L7) for associated
loan.
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N=No ground S74
lease
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental. S77
(Excludes Tax & Insurance Escrows). An
amount should be printed if the value in
Setup File field 77 is "Y"
Most Recent Appraisal Date 24 AN YYYYMMDD L74
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
Date Asset Expected to Be Resolved or 26 AN YYYYMMDD Could be different dates for different L79
Foreclosed properties. If in Foreclosure - Expected
Date of Foreclosure and if REO -
Expected Sale Date.
Foreclosure Date 27 AN YYYYMMDD L42
REO Date 28 AN YYYYMMDD L43
Most Recent Physical Occupancy 29 Numeric 0.75 L71
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of
the Rent Roll
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12
months
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, S62
MU, OT
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, S62
MU, OT
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, S62
MU, OT
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, S62
MU, OT
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, S62
MU, OT
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other
or Mixed Use, as applicable
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other
or Mixed Use, as applicable
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other
or Mixed Use, as applicable
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for
borrower's Fiscal Year. For example:
"12"
Contribution Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. S70
At the Property Level
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. S71
At the Property Level
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. S65
At the Property Level
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
Appraisal Date At Contribution 50 AN YYYYMMDD S68
Physical Occupancy At Contribution 51 Numeric 0.9 S69
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD L58
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00 L53
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt Service Amout 57 Numeric 1000000.00 Calculate using P20 (percentage) to get L55
the allocated amount for each property
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated L56
debt service amount
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9 L57
Second Preceding FY Financial As of Date 60 AN YYYYMMDD L65
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00 L59
Second Preceding FY Operating Expenses 62 Numeric 1000000.00 L60
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00 Calculate using P20 (percentage) to get L62
the allocated amount for each property
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3 Uses the property NOI and the allocated L63
debt service amount
Second Preceding FY Physical Occupancy 66 Numeric 0.9 L64
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20 (percentage) to get L69
the allocated amount for each property
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated L70
debt service amount
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most Recent L72
information either YTD or trailing 12
months
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most Recent L73
information either YTD or trailing 12
months
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should L83
match the prospectus if available.
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to L84
calculate. Should match the prospectus
if available.
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow L92
related to Financial As of Date P53.
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage L93
Ratio using NCF related to Financial As
of Date P53.
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow L94
related to Financial As of Date P60.
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service L95
Coverage Ratio Using Net Cash Flow
related to Financial As of Date P60.
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to L96
Financial As of Date P74.
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio L97
using Net Cash Flow related to Financial
As of Date P74.
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was L90
calculated should be the same for each
financial period. See NOI/NCF Indicator
Legend.
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred
Maintenance
</TABLE>
<PAGE>
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
------------------- -----------------
MF Multifamily CMSA Calculated using CMSA standard
FT Retail PSA Calculated using a definition given in the PSA
HC Health Care U/W Calculated using the underwriting method
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
<PAGE>
EXHIBIT 0-12
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
PROPERTY TYPE
-----------------------------------
CODE/ MULTI- HEALTH
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
---------- ----------- ---------- ------ ------ -------
--------------------------------------------------------------------------------
INCOME
--------------------------------------------------------------------------------
010GROSRNT Gross Potential Rent o o o
020VACANCY Less: Vacancy/Collection Loss o o o
030BASERNT Base Rent o o
040EXPREMB Expense Reimbursement o
050PCTRENT Percentage Rent o
060ROOMREV Room Revenue o
070FOODBEV Food & Beverage Revenues o
080PHONE Telephone Revenue o
090OTHDREV Other Departmental Revenue o
100PVTPAY Private Pay o
110MEDCARE Medicare/Medicaid o
120NURSING Nursing/Medical Income o
130MEALS Meals Income o
140LAUNDRY Laundry/Vending Income o
150PARKING Parking Income o o
160OTHERIN Other Income o o o o
--------------------------------------------------------------------------------
EXPENSES
--------------------------------------------------------------------------------
270ROOMS Room (Department) o
280FOODBEV Food & Beverage (Departmental) o
290PHONE Telephone Expenses (Departmental) o
300OTHDEPT Other Dept. Expenses o
310RETAXES Real Estate Taxes o o o o
320PROPINS Property Insurance o o o o
330UTILITI Utilities o o o o
340REPAIRS Repairs and Maintenance o o o o
350JANITOR Janitorial o
360FRANCHI Franchise Fee o
370MANAGEM Management Fees o o o o
380PAYROLL Payroll & Benefits o o o o
390MARKETI Advertising & Marketing o o o o
400PROFESS Professional Fees o o o o
410GENERAL General and Administrative o o o o
420ROOMS Room Expense - Housekeeping o
430MEALS Meal expense o
440OTHEREX Other Expenses o o o o
450GROUNDR Ground Rent o o o o
--------------------------------------------------------------------------------
RESRV & CAPEX
--------------------------------------------------------------------------------
490LEASING Leasing Commissions o
500TENANTI Tenant Improvements o
510CAPEX Capital Expenditures o o o o
520EXCAPEX Extraordinary Capital Expeoditures o o o o
DATA TYPES STATEMENT TYPES
---------- ---------------
YTD Current Year - Year to Date BOR Borrower's Statement (as submitted)
AN Annual (prior 12 months' data ADJ Adjustments to Borrower's Statement
...fiscal year - audited) NOR Normalized Statement (to CMSA format)
TR Trailing 12 months' data
UB Underwriting Base Line
<PAGE>
ATTACHMENT B:
CMSA FINANCIAL FILE SPECIFICATIONS
RECORD LAYOUT
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property ID From CMSA Property File, Field #4, Example: 1001-001
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99 Enter positive values except for
adjustments, contra accounts or other negative
numbers.
Key: Trans ID
Loan #
Property ID CMSA Property File, P4
YYYYMM Financial Statement Ending Date
Data Type
Statement Type
Category Code
SAMPLE ASCII PRESENTATION (PREFERRED)
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,510CAPEX,999999.99
<TABLE>
SAMPLE SPREADSHEET PRESENTATION
<CAPTION>
BEGIN ENDING STMT
TRANS ID LOAN # PROP ID YYYYMM YYYYMM DATA TYPE TYPE CATEGORY AMOUNT
-------- ------ ------- ------ ------ --------- ---- -------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 510CAPEX 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 510CAPEX 999999.99
</TABLE>
<PAGE>
<TABLE>
EXHIBIT 0-13
ORIX REAL ESTATE CAPITAL MARKETS, LLC
COMM 2000 C-1
FOR THE COLLECTION PERIOD ENDING:
PAID AFTER DETERMINATION DATE REPORT
(FOR LOANS DELINQUENT AS OF DETERMINATION DATE)
<CAPTION>
UPDATED
----------------
Primary Servicer PROSPECTUS PRIMARY SCHEDULED SCHEDULED CURRENT CURRENT PAID
--------------------------------------------------------------------------------------------------------------------------
ID LOAN LOAN PRINCIPAL INTEREST PRINCIPAL INTEREST TO
--------------------------------------------------------------------------------------------------------------------------
NUMBER NUMBER AMOUNT AMOUNT ADVANCE ADVANCE DATE
------------------------------------------------------------------------------------------------------
-------------------------------------------------------
<S> <C> <C> <C> <C>
0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
EXHIBIT 0-13 (continued)
ORIX REAL ESTATE CAPITAL MARKETS, LLC
COMM 2000 C-1
FOR THE COLLECTION PERIOD ENDING:
PAID AFTER DETERMINATION DATE REPORT
(FOR LOANS DELINQUENT AS OF DETERMINATION DATE)
<CAPTION>
PRIMARY SERVICER PRIMARY SUB MASTER
-------------------------------------------------------------------------
ID SERVICER SERVICER SERVICER NET
----------------------------------------------------------------------------------------
FEES FEES FEES ADVANCE
--------------------------------------------------------------------
--------------------------------------------------------------------
<S> <C> <C> <C> <C>
0.00 0.00 0.00 0.00
---------------
</TABLE>
<PAGE>
<TABLE>
SCHEDULE I
COMPANION LOAN SCHEDULE
<CAPTION>
LOAN NAME PROPERTY NAME ADDRESS CITY STATE ZIP RATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Crowne Plaza Companion Loan Crowne Plaza Manhattan 1605 Broadway New York New York 10019 8.473%
------------------------------------------------------------------------------------------------------------------------------------
Alliance Companion Loan Alliance TP Portfolio Various Various Various Various 7.320%
------------------------------------------------------------------------------------------------------------------------------------
Crystal Park Companion Loan Crystal Park One 2011 Crystal Drive Arlington Virginia 22202 7.840%
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
SCHEDULE I
COMPANION LOAN SCHEDULE (continued)
<CAPTION>
LOAN NAME ORIGINAL PRINCIPLE BALANCE CUT-OFF PRINCIPLE BALANCE MATURITY DATE ARD DUE DATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Crowne Plaza Companion Loan 27,959,949 04/01/25 04/01/10 1
------------------------------------------------------------------------------------------------------------------------------------
Alliance Companion Loan 15,584,666 09/01/28 09/01/08 1
------------------------------------------------------------------------------------------------------------------------------------
Crystal Park Companion Loan 13,611,558 10/01/29 10/01/09 1
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
SCHEDULE I
COMPANION LOAN SCHEDULE (continued)
LOAN NAME SERVICING FEE RATE ACTUAL/360 LOCKBOX
--------------------------------------------------------------------------------
Crowne Plaza Companion Loan 0.02250% TRUE Hard
--------------------------------------------------------------------------------
Alliance Companion Loan 0.03750% TRUE Soft
--------------------------------------------------------------------------------
Crystal Park Companion Loan 0.03750% FALSE Hard
--------------------------------------------------------------------------------
<PAGE>
SCHEDULE II
COMPANION HOLDERS
<TABLE>
<CAPTION>
LOAN NAME PROPERTY NAME HOLDER CUT-OFF PRINCIPLE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Crowne Plaza Companion Loan Crowne Plaza Manhattan L-O Broadway, Inc. 27,959,949
------------------------------------------------------------------------------------------------------------------------------------
Alliance Companion Loan Alliance TP Portfolio German American Capital Corporation 15,584,666
------------------------------------------------------------------------------------------------------------------------------------
Crystal Park Companion Loan Crystal Park One German American Capital Corporation 13,611,558
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
