------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER CAPITAL I INC.,
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
PRINCIPAL CAPITAL MANAGEMENT, LLC,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
ABN AMRO BANK N.V.,
as Fiscal Agent
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-PRIN
------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................
Section 1.1 Definitions..............................................
Section 1.2 Calculations Respecting Mortgage Loans...................
Section 1.3 Calculations Respecting Accrued Interest.................
Section 1.4 Interpretation...........................................
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES.............
Section 2.1 Conveyance of Mortgage Loans.............................
Section 2.2 Acceptance by Trustee....................................
Section 2.3 Seller's Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties...........
Section 2.4 Representations and Warranties...........................
Section 2.5 Conveyance of Interests..................................
ARTICLE III THE CERTIFICATES............................................
Section 3.1 The Certificates.........................................
Section 3.2 Registration.............................................
Section 3.3 Transfer and Exchange of Certificates....................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates........
Section 3.5 Persons Deemed Owners....................................
Section 3.6 Access to List of Certificateholders' Names and Addresses
Section 3.7 Definitive Certificates and Book-Entry Certificates......
Section 3.8 Notices to Clearing Agency...............................
Section 3.9 Definitive Certificates..................................
ARTICLE IV ADVANCES....................................................
Section 4.1 P&I Advances by Master Servicer..........................
Section 4.2 Servicing Advances.......................................
Section 4.3 Advances by the Trustee and the Fiscal Agent.............
Section 4.4 Evidence of Nonrecoverability............................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan..........................
Section 4.6 Reimbursement of Advances and Advance Interest...........
Section 4.7 Fiscal Agent Termination Event...........................
Section 4.8 Procedure Upon Termination Event.........................
Section 4.9 Merger or Consolidation of Fiscal Agent..................
Section 4.10 Limitation on Liability of the Fiscal Agent and Others...
Section 4.11 Indemnification of Fiscal Agent..........................
ARTICLE V ADMINISTRATION OF THE TRUST.................................
Section 5.1 Collections..............................................
Section 5.2 Application of Funds in the Certificate Account..........
Section 5.3 Distribution Account and Reserve Account.................
Section 5.4 Trustee Reports..........................................
Section 5.5 Trustee Tax Reports......................................
ARTICLE VI DISTRIBUTIONS...............................................
Section 6.1 Distributions Generally..................................
Section 6.2 REMIC I..................................................
Section 6.3 REMIC II.................................................
Section 6.4 Reserved.................................................
Section 6.5 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability......................
Section 6.6 Net Aggregate Prepayment Interest Shortfalls.............
Section 6.7 Adjustment of Servicing Fees.............................
Section 6.8 Appraisal Reductions.....................................
Section 6.9 Compliance with Withholding Requirements.................
Section 6.10 Prepayment Premiums......................................
ARTICLE VII CONCERNING THE TRUSTEE AND THE FISCAL AGENT.................
Section 7.1 Duties of the Trustee and the Fiscal Agent...............
Section 7.2 Certain Matters Affecting the Trustee and the
Fiscal Agent ............................................
Section 7.3 The Trustee and the Fiscal Agent Not Liable for
Certificates
or Interests or Mortgage Loans...........................
Section 7.4 The Trustee and the Fiscal Agent May Own Certificates....
Section 7.5 Eligibility Requirements for the Trustee and the Fiscal
Agent....................................................
Section 7.6 Resignation and Removal of the Trustee and the
Fiscal Agent.............................................
Section 7.7 Successor Trustee or Fiscal Agent........................
Section 7.8 Merger or Consolidation of Trustee or Fiscal Agent.......
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian................................................
Section 7.10 Authenticating Agents....................................
Section 7.11 Indemnification of Trustee and the Fiscal Agent..........
Section 7.12 Fees and Expenses of Trustee and the Fiscal Agent........
Section 7.13 Collection of Moneys.....................................
Section 7.14 Trustee To Act; Appointment of Successor.................
Section 7.15 Notification to Holders..................................
Section 7.16 Representations and Warranties of the Trustee and the
Fiscal Agent.............................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Trustee and the Fiscal Agent....
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..............
Section 8.1 Servicing Standard; Servicing Duties.....................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Master Servicer.................
Section 8.3 Master Servicer's General Power and Duties...............
Section 8.4 Primary Servicing and Sub-Servicing......................
Section 8.5 Servicers May Own Certificates...........................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance,
Taxes and other..........................................
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause................................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files..
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit of the
Certificateholders.......................................
Section 8.10 Servicing Compensation...................................
Section 8.11 Master Servicer Reports; Account Statements..............
Section 8.12 Annual Statement as to Compliance........................
Section 8.13 Annual Independent Public Accountants' Servicing Report..
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties.....................................
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer..........................................
Section 8.16 Rule 144A Information....................................
Section 8.17 Inspections..............................................
Section 8.18 Modifications, Waivers, Amendments, Extensions
and Consents. ...........................................
Section 8.19 Specially Serviced Mortgage Loans........................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer.................................................
Section 8.21 Merger or Consolidation..................................
Section 8.22 Resignation of Master Servicer...........................
Section 8.23 Assignment or Delegation of Duties by Master Servicer....
Section 8.24 Limitation on Liability of the Master Servicer and Others
Section 8.25 Indemnification; Third-Party Claims......................
Section 8.26 Exchange Act Reporting...................................
Section 8.27 Compliance with REMIC Provisions.........................
Section 8.28 Termination..............................................
Section 8.29 Procedure Upon Termination...............................
ARTICLE IX ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER...................................
Section 9.1 Duties of Special Servicer...............................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance
Policy of Special Servicer...............................
Section 9.3 Sub-Servicers............................................
Section 9.4 Special Servicer General Powers and Duties...............
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses........................
Section 9.6 Release of Mortgage Files................................
Section 9.7 Documents, Records and Funds in Possession of
Special Servicer To Be Held for the Trustee..............
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer.................................................
Section 9.9 Standard Hazard, Flood and Comprehensive
General Liability Insurance Policies.....................
Section 9.10 Presentment of Claims and Collection of Proceeds.........
Section 9.11 Compensation to the Special Servicer.....................
Section 9.12 Realization Upon Defaulted Mortgage Loans................
Section 9.13 Foreclosure..............................................
Section 9.14 Operation of REO Property................................
Section 9.15 Sale of REO Property.....................................
Section 9.16 Realization on Collateral Security.......................
Section 9.17 Sale of Defaulted Mortgage Loans.........................
Section 9.18 Annual Officer's Certificate as to Compliance............
Section 9.19 Annual Independent Accountants' Servicing Report.........
Section 9.20 Merger or Consolidation..................................
Section 9.21 Resignation of Special Servicer..........................
Section 9.22 Assignment or Delegation of Duties by Special Servicer...
Section 9.23 Limitation on Liability of the Special Servicer
and Others...............................................
Section 9.24 Indemnification; Third-Party Claims......................
Section 9.25 [Reserved]...............................................
Section 9.26 Special Servicer May Own Certificates....................
Section 9.27 Tax Reporting............................................
Section 9.28 Application of Funds Received............................
Section 9.29 Compliance with REMIC Provisions.........................
Section 9.30 Termination..............................................
Section 9.31 Procedure Upon Termination...............................
Section 9.32 Certain Special Servicer Reports.........................
Section 9.33 Special Servicer to Cooperate with the Master Servicer...
Section 9.34 Certain REMIC Limitations on Modification of Specially
Serviced Mortgage Loans..................................
Section 9.35 [Reserved]...............................................
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties......
Section 9.37 Operating Adviser; Elections.............................
Section 9.38 Limitation on Liability of Operating Adviser.............
Section 9.39 Duties of Operating Adviser..............................
ARTICLE X PURCHASE AND TERMINATION OF THE TRUST.......................
Section 10.1 Termination of Trust Upon Repurchase or
Liquidation of All Mortgage Loans........................
Section 10.2 Procedure Upon Termination of Trust......................
Section 10.3 Additional Trust Termination Requirements................
ARTICLE XI RIGHTS OF CERTIFICATEHOLDERS................................
Section 11.1 Limitation on Rights of Holders..........................
Section 11.2 Access to List of Holders................................
Section 11.3 Acts of Holders of Certificates..........................
ARTICLE XII REMIC ADMINISTRATION........................................
Section 12.1 REMIC Administration.....................................
Section 12.2 Prohibited Transactions and Activities...................
Section 12.3 Modifications of Mortgage Loans..........................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status...................................................
ARTICLE XIII MISCELLANEOUS PROVISIONS....................................
Section 13.1 Binding Nature of Agreement..............................
Section 13.2 Entire Agreement.........................................
Section 13.3 Amendment................................................
Section 13.4 GOVERNING LAW............................................
Section 13.5 Notices..................................................
Section 13.6 Severability of Provisions...............................
Section 13.7 Indulgences; No Waivers..................................
Section 13.8 Headings Not to Affect Interpretation....................
Section 13.9 Benefits of Agreement....................................
Section 13.10 Special Notices to the Rating Agencies...................
Section 13.11 Counterparts.............................................
Section 13.12 Intention of Parties.....................................
Section 13.13 Recordation of Agreement.................................
Section 13.14 Rating Agency Monitoring Fees............................
Section 13.15 [Reserved]...............................................
EXHIBITS AND SCHEDULES
----------------------
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-4 Certificate
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Reserved
EXHIBIT A-17 Reserved
EXHIBIT A-18 Form of Class R-I Certificate
EXHIBIT A-19 Form of Class R-II Certificate
EXHIBIT A-20 Form of Class X Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee
EXHIBIT B-2 Form of Final Certification of Trustee
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates
EXHIBIT E-1 Form of Transfer Affidavit and Agreement
EXHIBIT E-2 Form of Transfer Affidavit and Agreement
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G Form of Primary Servicing Agreement
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
EXHIBIT J Reserved
EXHIBIT K Form of Mortgage Loan Purchase Agreement
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports
EXHIBIT N Form of Operating Statement Analysis Report
EXHIBIT O Form of Special Servicer Monthly Reports
EXHIBIT P Reserved
EXHIBIT Q Form of Mortgage Loan Information
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer
EXHIBIT S-2 Form of Power of Attorney to Special Servicer
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special
Servicer
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
EXHIBIT W CMSA Reports
SCHEDULE I Loan Schedule
THIS POOLING AND SERVICING AGREEMENT is dated as of September 1,
2000 (this "Agreement") among MORGAN STANLEY DEAN WITTER CAPITAL I INC. as
depositor (the "Depositor"), WELLS FARGO BANK, NATIONAL ASSOCIATION, as master
servicer (the "Master Servicer"), PRINCIPAL CAPITAL MANAGEMENT, LLC, as special
servicer (the "Special Servicer"), LASALLE BANK NATIONAL ASSOCIATION, as trustee
of the Trust (the "Trustee") and ABN AMRO BANK, N.V., only in its capacity as a
fiscal agent pursuant to Article IV hereof (the "Fiscal Agent").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Principal Life Insurance Company, seller ("Principal"), and will be the
owner of the Mortgage Loans and the other property being conveyed by it to the
Trustee for inclusion in the Trust which is hereby created. On the Closing Date,
the Depositor will acquire (i) the REMIC I Regular Interests and the Class R-I
Certificate as consideration for its transfer to the Trust of the Mortgage Loans
and the other property constituting the Trust and (ii) the REMIC II Certificates
as consideration for its transfer of the REMIC I Regular Interests to the Trust.
The Depositor has duly authorized the execution and delivery of this Agreement
to provide for the foregoing and the issuance of (A) the REMIC I Regular
Interests and the Class R-I Certificates representing in the aggregate the
entire beneficial ownership of REMIC I and (B) the REMIC II Certificates
representing in the aggregate the entire beneficial ownership of REMIC II. All
covenants and agreements made by the Depositor and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the Residual
Certificates and the REMIC Regular Certificates. The parties hereto are entering
into this Agreement, and the Trustee is accepting the trusts created hereby, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Class A, Class B, Class C, Class D and Class E Certificates have
been offered for sale pursuant to the prospectus dated September 7, 2000, (the
"Prospectus"), as supplemented by the preliminary prospectus supplement dated
September 7, 2000 (together, with the Prospectus, the "Preliminary Prospectus
Supplement") as further supplemented by the final prospectus supplement dated
September 15, 2000 (together with the Prospectus, the "Final Prospectus
Supplement") and the Class X, Class F, Class G, Class H, Class J, Class K, Class
L and Class M Certificates have been offered for sale pursuant to the private
placement memorandum dated September 15, 2000 (the "Private Placement
Memorandum") and the Prospectus Supplement.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC I Regular Interests and the
Class R-I Certificates comprising the interests in REMIC I and each Class of
REMIC II Certificates comprising the interests in REMIC II created hereunder:
REMIC I
The REMIC I Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-I
Certificates will be designated as the sole class of residual interests in REMIC
I and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC I after all
classes of REMIC I Regular Interests have been paid in full.
<TABLE>
<CAPTION>
REMIC II
Initial Aggregate
Certificate
Initial Principal or
Pass-Through Notional Final Scheduled Final Rated
Designation Rate(a) Amount Distribution Date(b) Distribution Date(c)
----------- ------- ------ -------------------- --------------------
<S> <C> <C> <C> <C>
Class A-1 7.07% $ 66,073,000 June 23, 2006 February 23, 2034
Class A-2 7.18% $ 160,600,000 May 23, 2009 February 23, 2034
Class A-3 7.36% $ 94,527,000 May 23, 2009 February 23, 2034
Class A-4 7.49% $ 199,047,000 January 23, 2015 February 23, 2034
Class X 0.44% N/A N/A February 23, 2034
Class B 7.66% $ 17,939,000 December 23, 2015 February 23, 2034
Class C 7.78% $ 19,435,000 March 23, 2017 February 23, 2034
Class D 7.78% $ 10,464,000 December 23, 2017 February 23, 2034
Class E 7.78% $ 4,850,000 December 23, 2017 February 23, 2034
Class F 7.07% $ 13,455,000 January 23, 2019 February 23, 2034
Class G 7.07% $ 2,990,000 October 23, 2019 February 23, 2034
Class H 7.07% $ 2,990,000 September 23, 2020 February 23, 2034
Class J 7.07% $ 1,495,000 February 23, 2021 February 23, 2034
Class K 7.07% $ 1,495,000 July 23, 2021 February 23, 2034
Class L 7.07% $ 1,495,000 February 23, 2022 February 23, 2034
Class M 7.07% $ 1,495,115.14 July 23, 2023 February 23, 2034
Class R-II(d) N/A N/A N/A N/A
</TABLE>
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments) will
be made on the Mortgage Loans in accordance with their terms.
(c) The Final Rated Distribution Date for each Class of Certificates is
February 23, 2034. That date is approximately 24 months following the end
of the amortization term of the Mortgage Loan that, as of the Closing Date,
has the longest remaining amortization term.
(d) The Class R-II Certificates will be entitled to receive the proceeds of any
remaining assets in REMIC II after the principal amounts of all Classes of
Certificates have been reduced to zero and any Realized Losses previously
allocated thereto (and any interest thereon) have been reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $597,985,115.
As provided herein, with respect to the Trust, the Trustee on behalf
of the Trustee will make an election for the segregated pool of assets described
in the first paragraph of Section 12.1(a) hereof (including the Mortgage Loans)
to be treated for federal income tax purposes as a real estate mortgage
investment conduit ("REMIC I"). The REMIC I Regular Interests will be designated
as the "regular interests" in REMIC I and the Class R-I Certificates will be
designated as the sole class of "residual interests" in REMIC I.
As provided herein, with respect to the Trust, the Trustee will make
an election for the segregated pool of assets described in the second paragraph
of Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be
treated for federal income tax purposes as a real estate mortgage investment
conduit ("REMIC II"). The Class A-1, Class A-2, Class A-3, Class A-4, Class X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L and Class M Certificates will be designated as the "regular interests"
in REMIC II and the Class R-II Certificates (together with the REMIC Regular
Certificates, the "REMIC II Certificates") will be designated as the sole class
of "residual interests" in REMIC II for purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"ACCOUNTANT" means a person engaged in the practice of accounting
who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X Certificates for each Distribution Date will equal the Class X Interest
Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property.
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees and Liquidation Fees (to the extent not collected from
the related Mortgagor), (ii) Advance Interest that cannot be paid in accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent (or any other Person) pursuant
to the terms of this Agreement; (iv) to the extent not otherwise paid, any
federal, state, or local taxes imposed on the Trust or its assets and paid from
amounts on deposit in the Certificate Account or Distribution Account, (v) the
amount of any Advance that is not recovered from the proceeds of a Mortgage Loan
upon a Final Recovery Determination and (vi) to the extent not included in the
calculation of a Realized Loss and not covered by indemnification by one of the
parties hereto or otherwise, any other unanticipated cost, liability, or expense
(or portion thereof) of the Trust (including costs of collecting such amounts or
other Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or Special Servicer in the case of a Specially
Serviced Mortgage Loan) will not, recover from the related Mortgagor or
Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof. Notwithstanding anything to the contrary,
"Additional Trust Expenses" shall not include allocable overhead of the Master
Servicer, the Special Servicer, the Primary Servicer, the Trustee or the Fiscal
Agent, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses, and similar internal costs and
expenses.
"ADMINISTRATIVE COST RATE" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate and the Trustee Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer,
the Trustee or the Fiscal Agent on outstanding Advances pursuant to Section 4.5
of this Agreement.
"ADVANCE PAYMENT MORTGAGE LOANS" means the Mortgage Loans known
as Loan Nos. 35 and 36.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the third Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of either REMIC as a REMIC or (ii) subject to Section 9.14(e), result
in the imposition of a tax upon the income of either REMIC or any of their
respective assets or transactions, including (without limitation) the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, 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.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the Principal Balance Certificates or the REMIC I
Regular Interests, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates or REMIC I Regular
Interests, Aggregate Certificate Balance shall mean the aggregate of the
Certificate Balances of all Certificates or Interests, as the case may be, of
that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, not
later than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the effective date of any modification
to a Money Term of a Mortgage Loan, other than an extension of the due date that
a Balloon Payment is due for a period of less than six months from the original
due date of such Balloon Payment, and (iv) the date 30 days following the date
the related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.8, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) less the undrawn principal amount of any letter of
credit that is then securing such Mortgage Loan, (ii) to the extent not
previously advanced by the Master Servicer, the Trustee or the Fiscal Agent, all
unpaid interest on such Mortgage Loan at a per annum rate equal to the Mortgage
Rate, (iii) all unreimbursed Advances and interest on Advances at the Advance
Rate with respect to such Mortgage Loan, and (iv) to the extent funds on deposit
in any applicable Escrow Accounts are not sufficient therefor, and to the extent
not previously advanced by the Master Servicer, the Trustee or the Fiscal Agent,
all currently due and unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents and other amounts which were required
to be deposited in any Escrow Account (but were not deposited) in respect of
such Mortgaged Property or REO Property, as the case may be, over (B) 90% of the
Appraised Value (net of any prior mortgage liens) of such Mortgaged Property or
REO Property as determined by such Appraisal or internal valuation, as the case
may be, plus the amount of any escrows held by or on behalf of the Trustee as
security for the Mortgage Loan (less the estimated amount of the obligations
anticipated to be payable in the next twelve months to which such escrows
relate). Notwithstanding the forgoing, without limiting the obligation to order
and obtain an Appraisal or internal valuation, in the event that the Appraisal
or internal valuation, as applicable, has not been received by the date on which
an Appraisal Event occurs (or, in the case of an Appraisal Event described in
clause (ii) of the definition thereof, within 60 days after receipt of the
notice described in such clause (ii)), the amount of the Appraisal Reduction
will be deemed to be an amount equal to 25% of the current Principal Balance of
the related Mortgage Loan until the Appraisal or internal valuation is received
at which point the Appraisal Reduction shall be calculated. Each Appraisal or
internal valuation for a Required Appraisal Loan shall be updated annually. The
Appraisal Reduction for each Required Appraisal Loan will be recalculated based
on subsequent Appraisals, internal valuations or updates. Any Appraisal
Reduction for any Mortgage Loan shall be reduced to reflect any Realized
Principal Losses on the Required Appraisal Loan. Each Appraisal Reduction will
be reduced to zero as of the date the related Mortgage Loan is brought current
under the then current terms of the Mortgage Loan for at least three consecutive
months, and no Appraisal Reduction will exist as to any Mortgage Loan after it
has been paid in full, liquidated, repurchased or otherwise disposed of. The
Appraisal Reduction will also be reduced by the amount of any Realized Loss of
principal on the related Mortgage Loan incurred prior to the liquidation or
disposition thereof.
"APPRAISED VALUE" means, with respect to any Mortgaged Property, the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.8,
the value of the Mortgaged Property determined by such internal valuation.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment that would have been due in respect of such Mortgage Loan on
such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or the Special Servicer pursuant to the
terms hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date
therefor as of which the related REO Property remains part of the Trust, the
scheduled monthly payment of principal and interest deemed to be due in respect
thereof on such Due Date equal to the Scheduled Payment (or, in the case of a
Balloon Mortgage Loan described in the preceding clause of this definition, the
Assumed Scheduled Payment) that was due in respect of the related Mortgage Loan
on the last Due Date prior to its becoming an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth
in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received or deemed
received by the Master Servicer or the Special Servicer through the end of the
related Collection Period (as to any Post Determination Date Mortgage Loans,
sums received with respect to any Due Date but on or after the related Master
Servicer Remittance Date, shall be applied by the Master Servicer to reimburse
any P&I Advances made on such Master Servicer Remittance Date by the Master
Servicer with respect to such Post Determination Date Mortgage Loan and shall
not be part of the Available Distribution Amount for the next Distribution Date)
exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the Master
Servicer in respect of unpaid Master Servicing Fees, the Primary Servicer in
respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation or the Trustee in respect of unpaid Trustee
Fees) and (iii) amounts that constitute Prepayment Premiums, and (b) if and to
the extent not already among the amounts described in clause (a), (i) the
aggregate amount of any P&I Advances made by the Master Servicer, the Trustee or
the Fiscal Agent for such Distribution Date pursuant to Section 4.1 and/or
Section 4.3, (ii) the aggregate amount of any Compensating Interest payments
made by the Master Servicer or the Special Servicer for such Distribution Date
pursuant to the terms hereof, (iii) as to Loan Number 37, the aggregate amount
of any payment made pursuant to Section 5.1(d) hereof and (iv) if such
Distribution Date occurs with respect to a Collection Period in which an Advance
Payment Mortgage Loan matures, the Primary Servicer shall remit to the Trustee
an amount equal to that portion of the interest payable to the Certificates that
will be due on such Distribution Date relating to the Maturity Date with respect
to such Advance Payment Mortgage Loan.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan which will not be
fully amortized by its original or modified Maturity Date, based on the fixed
monthly Scheduled Payment.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to
the Trustee and the Master Servicer to the effect that any proposed transfer
will not (i) cause the assets of either REMIC to be regarded as plan assets for
purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty
on the part of the Depositor, the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BREACH" has the meaning set forth in Section 2.3(a).
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, Des Moines, Iowa,
San Francisco, California or the principal cities in which the Special Servicer,
the Trustee or the Master Servicer conducts servicing or trust operations, or
(iii) a day on which banking institutions or savings associations in New York,
New York, Chicago, Illinois, Des Moines, Iowa or San Francisco, California are
authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the amount of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase Proceeds and other payments or recoveries with
respect to a Final Recovery Determination. The Master Servicer shall maintain
records in accordance with the Servicing Standard (and, in the case of Specially
Serviced Mortgage Loans, based on the written reports with respect to such Cash
Liquidation delivered by the Special Servicer to the Master Servicer), of each
Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a),
which each account shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate or
Interest (other than the Class X Certificates and the Residual Certificates) as
of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto in the Preliminary Statement
hereto (in the case of an Interest), minus (i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.3(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a), (ii) all Realized Losses allocated or deemed to have
been allocated to such Interest or Certificate pursuant to Section 6.5, and
(iii) Expense Losses allocated to such Interest or Certificate pursuant to
Section 6.5.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Trustee.
"CERTIFICATEHOLDERS" has the meaning provided in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC II Certificates and
the Class R-I Certificates.
"CLASS" means, with respect to the REMIC I Interests and REMIC II
Certificates, any Class of such Certificates or Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS A-4 CERTIFICATES," "CLASS X CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS R-I CERTIFICATES" and "CLASS R-II
CERTIFICATES" mean the Certificates designated as "Class A-1," "Class A-2,"
"Class A-3," "Class A-4," "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 R-I" and "Class R-II," respectively, on the face thereof, in
substantially the form attached hereto as Exhibits A-1 through A-20 hereof.
CLASS A CERTIFICATES" means the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates and Class A-4 Certificates, collectively.
"CLASS X INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class X
Strip Rates for the Principal Balance Certificates, weighted on the basis of the
respective Certificate Balances of such Classes of Certificates, and (ii) the
Class X Notional Amount for such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the Principal Balance
Certificates as of the close of business on the related Distribution Date.
"CLASS X STRIP RATE" means, for any Distribution Date, with respect
to any Class of Certificates (other than the Class X and the Residual
Certificates), the excess, if any, of the Weighted Average Net Mortgage Rate for
such Distribution Date over the Pass-Through Rate for such Class of
Certificates.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLEARSTREAM" means Clearstream Banking, societe anonyme.
"CLOSING DATE" means September 26, 2000.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA REPORTS" means the following reports in CMSA format (as in
effect on the date hereof) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and Special Servicer (with respect to Specially Serviced Mortgage Loans and REO
Properties)): (A)(i) a Comparative Financial Status Report; (ii) an NOI
Adjustment Worksheet; (iii) without duplication with Section 8.14, an Operating
Statement Analysis Report, (iv) subject to Section 8.11(h), a Servicer Watch
List, (v) a Property File, (vi) a Loan Set-Up File (with respect to initial
Distribution Date only), (vii) a Loan Periodic Update File; and (B) the
following supplemental reports: (i) a Delinquent Loan Status Report, (ii) an
Historical Loan Modification Report, (ii) and Historical Liquidation Report and
(iv) an REO Status Report.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the excess of (A) Prepayment Interest Shortfalls resulting
from Principal Prepayments during the related Collection Period over (B)
Prepayment Interest Excesses resulting from Principal Prepayments during the
same Collection Period, but in any event (i) with respect to Compensating
Interest to be paid by the Master Servicer hereunder, not more than the portion
of the aggregate Master Servicing Fee for the related Collection Period
calculated in respect of all the Mortgage Loans (including REO Mortgage Loans)
and (ii) with respect to Compensating Interest to be paid by the Special
Servicer hereunder, not more than the portion of the aggregate Special Servicing
Fee for the related Collection Period calculated in respect of all the Specially
Serviced Mortgage Loans, including REO Mortgage Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular Certificates outstanding at any time of determination; provided, that,
no Class may be the Controlling Class at any time that the then Certificate
Balance of such Class is less than 25% of the initial Certificate Balance of
such Class. As of the Closing Date, the Controlling Class will be the Class M
Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 135 South LaSalle Street, Suite 1625,
Chicago, IL 60603, Attention: Asset Backed Securities Trust Services Group
Morgan Stanley Series 2000-PRIN or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor,
the Master Servicer and the Special Servicer.
"CORRESPONDING CERTIFICATES" means, with respect to each Class of
REMIC I Regular Interests, the Class of Certificates bearing the same letter
designation.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Class of Certificates, the REMIC I Regular Interest having the same letter
designation.
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and the Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on September 1, 2000. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be deemed to be the end of business on September
1, 2000.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan as a result of any proceeding under bankruptcy law or any similar
proceeding (other than a Deficient Valuation Amount); provided, however, that in
the case of an amount that is deferred, but not forgiven, such reduction shall
include only the net present value (calculated at the related Mortgage Rate) of
the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property
relating to a Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the total
amount due with respect to a Mortgage Loan (excluding interest not yet accrued),
including the principal balance of a Mortgage Loan plus any accrued and unpaid
interest thereon and any other amounts recoverable from the Mortgagor with
respect thereto pursuant to the terms thereof, is reduced in connection with a
Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Morgan Stanley Dean Witter Capital I Inc., a
Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated
March 29, 2000 by and among the Depositor and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date,
the earlier of (i) the 18th day of the month in which such Distribution Date
occurs or, if such day is not a Business Day, the immediately preceding Business
Day, and (ii) the 5th Business Day prior to the related Distribution Date,
commencing October 16th, 2000.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than a sale of an REO Property pursuant to and in
accordance with Section 9.15 or Section 9.36), the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by the Trust, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs, tenant
improvements or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
connection with leasing activity) or undertakes any ministerial action
incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate" is the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15--Selected Interest Rates
under the heading "U.S. government securities/Treasury constant maturities" for
the week ending prior to the date of the relevant principal prepayment, of U.S.
Treasury constant maturities with a maturity date, in the case of Mortgage Loans
which require the related Mortgagor to pay a Prepayment Premium, calculated by
reference to the Maturity Date of such Mortgage Loan, or weighted average life,
in the case of Mortgage Loans which require the related Mortgagor to pay a
Prepayment Premium calculated by reference to the weighted average life of such
Mortgage Loan, (one longer and one shorter) most nearly approximating the
Maturity Date or weighted average life, as applicable, of the Mortgage Loan
prepaid. If Release H.15 is no longer published, the Master Servicer will select
a comparable publication to determine the Treasury Rate.
"DISQUALIFIED FOREIGN PERSON" means, with respect to a Class R-I or
Class R-II Certificate, any Foreign Person or agent thereof other than (i) a
Foreign Person that holds the Class R-I or Class R-II 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 successor form) or (ii) a Foreign 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-I or Class
R-II 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-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest, reduced
by (i) any Net Aggregate Prepayment Interest Shortfalls not offset by
Compensating Interest, allocated on such Distribution Date to such Class or
Interest pursuant to Section 6.6, and (ii) Realized Losses and Expense Losses
allocated on such Distribution Date to reduce the interest payable to such Class
or Interest pursuant to Section 6.5, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Trustee, in accordance with the provisions of Section 5.3, which account
shall be an Eligible Account.
"DISTRIBUTION DATE" means the 23rd day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing October 23,
2000.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan, the date on which
a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "A-1" by S&P and "P-1" by Moody's, if the deposits
are to be held in the account for 30 days or less), or (B) long-term unsecured
debt obligations are rated at least "A-" by S&P and "Aa3" by Moody's, if the
deposits are to be held in the account more than 30 days or (ii) a segregated
trust account or accounts maintained in the trust department of the Trustee or
other financial institution subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b),
or (iii) an account or accounts of a depository institution acceptable to each
Rating Agency, as evidenced by Rating Agency Confirmation with respect to the
use of any such account as the Certificate Account or the Distribution Account.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Wells Fargo
Bank Iowa, N.A. a wholly-owned subsidiary of Wells Fargo & Co. provided that
Wells Fargo Bank Iowa, N.A.'s or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "A-1" in
the case of S&P, and "P-1" in the case of Moody's, if the deposits are to be
held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "A-" in the case of S&P and "Aa3" in the case of
Moody's, if the deposits are to be held in the account more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by, any
depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, or any Affiliate of the Master Servicer, the
Special Servicer or the Trustee, acting in its commercial capacity) incorporated
or organized under the laws of the United States of America or any State thereof
and subject to supervision and examination by federal or state banking
authorities, so long as the commercial paper or other short-term debt
obligations of such depository institution or trust company are rated "P-1" by
Moody's and "A-1+" by S&P or the long-term unsecured debt obligations of such
depository institution or trust company have been assigned a rating by each
Rating Agency at least equal "Aa3" by Moody's and AA- by S&P or its equivalent
or, in each case, if not rated by a Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) 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) rated "P-1" by
Moody's and "A-1+" by S&P (or for which Rating Agency Confirmation is obtained
with respect to such ratings);
(vi) units of investment funds (including money market funds) rated
in the highest long-term category by Moody's, or if not rated by Moody's then
otherwise approved by Moody's, and the highest long-term category by S&P, or if
not rated by S&P then S&P has issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose long-term
unsecured debt rating is not less than "Aa3" (or its equivalent rating) by
Moody's and "AA-" by S&P (if rated by Moody's or, if not rated by Moody's, by
S&P and another nationally recognized statistical rating organization), or for
which Rating Agency Confirmation is obtained with respect to such ratings;
(viii) any money market funds that maintain a constant asset value
and that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by S&P and
Moody's, and any other demand, money-market or time deposit, or any other
obligation, security or investment, with respect to which Rating Agency
Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of Treasury
Regulations Section 1.860G-2(g)(i) (as evidenced by an Opinion of Counsel
delivered to the Trustee by the Master Servicer at the Master Servicer's
expense), as are acceptable to the Rating Agencies (as evidenced by Rating
Agency Confirmation) and treated as "permitted investments" that are "cash flow
investments" under Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and provided, further, that no
amount beneficially owned by either REMIC Pool (including any amounts collected
by the Master Servicer but not yet deposited in the Certificate Account) may be
invested in investments treated as equity interests for Federal income tax
purposes. No Eligible Investments shall be purchased at a price in excess of
par. For the purpose of this definition, units of investment funds (including
money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ESCROW ACCOUNT" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(b).
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan on the date
such proceeds were received.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RATED DISTRIBUTION DATE" means with respect to each rated
Class of Certificates, the date shown on the chart in the Preliminary Statement
hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan or Specially Serviced Mortgage Loan by the Master Servicer in
consultation with the Special Servicer in respect of any Defaulted Mortgage Loan
(including a Mortgage Loan that became an REO Property), in each case, in its
good faith discretion, consistent with the Servicing Standard that all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and
other payments or recoveries which the Master Servicer or the Special Servicer,
as the case may be, expects to be finally recoverable on such Mortgage Loan,
without regard to any obligation of the Master Servicer, the Trustee or the
Fiscal Agent, as the case may be, to make payments from its own funds pursuant
to Article IV hereof, have been recovered. The Special Servicer shall be
required to provide the Master Servicer with prompt written notice of any Final
Recovery Determination with respect to any Specially Serviced Mortgage Loan upon
making such determination. The Master Servicer shall notify the Trustee of such
determination and the Trustee shall deliver a copy of such notice to each Rating
Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class will be paid in full
assuming that timely payments will be made on the Mortgage Loans in accordance
with their terms.
"FINANCIAL MARKET PUBLISHER" means each of Bloomberg Financial
Service, Trepp Financial and Intex Inc.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 4.7 hereof.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"FOREIGN PERSON" means a Person other than 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 Foreign Persons have the authority to control all substantial
decisions of such trust.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered
on the Certificate Register.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to the applicable REMIC Pool within the
meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate
investment trust (except that the ownership test set forth in such Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Class R-II Certificates), a
Percentage Interest of 35% or more in the Class R-II Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC Pool is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5), or (ii) any other Person (including the Master Servicer
or the Special Servicer) upon receipt by the Trustee of an Opinion of Counsel,
which shall be at the expense of the Person delivering such opinion to the
Trustee, 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.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INSPECTION REPORT" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy or title insurance policy relating to
the Mortgage Loans or the Mortgaged Properties in effect as of the Closing Date
or thereafter during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan or the Servicing Standard.
"INTEREST" means a REMIC I Interest.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTERESTED PERSON" means, as of any date of determination, the
Master Servicer, the Special Servicer, the Depositor, the holder of any related
Junior Indebtedness (with respect to any particular Mortgage Loan), a holder of
50% or more of the Controlling Class, the Operating Adviser, any Independent
Contractor engaged by the Master Servicer or the Special Servicer pursuant to
this Agreement, or any Person actually known to a Responsible Officer of the
Trustee to be an Affiliate of any of them.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that
is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan, all
amounts received during any Collection Period, whether as late payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" means a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan in connection with a late
payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, appraisal fees, committee or referee fees, property
manager fees, and, if applicable, brokerage commissions and conveyance taxes for
such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to
enforcement and disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available or
(ii) advanced by the Master Servicer, subject to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and
(y) the Liquidation Proceeds received in connection with a final disposition of
a Specially Serviced Mortgage Loan or REO Property.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation
of a Mortgage Loan or related REO Property, net of Liquidation Expenses and any
related Advances and interest thereon (to the extent not otherwise paid pursuant
to Section 4.6(c)).
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses incurred in connection with such
Mortgage Loan that are reimbursable to any Person, other than amounts previously
treated as Expense Losses or included in the definition of Liquidation Expenses
minus the sum of (i) REO Income applied as recoveries of principal or interest
on the related Mortgage Loan or REO Property, and (ii) Liquidation Proceeds,
Late Collections and all other amounts recovered from the related Mortgagor and
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred. REO Income and Liquidation Proceeds shall be applied first
against any Expense Losses (to the extent not included in the definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest on the
Mortgage Loan, calculated as described in clause (B) above, and then against the
principal balance of such Mortgage Loan, calculated as described in clause (A)
above.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the principal balance of such Mortgage Loan at the date of determination and
the denominator of which is the value of the Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged Property which is available
as of such date; provided, however, with respect to the calculation of the
original Loan-to-Value Ratio of a Deleted Mortgage Loan as described in clause
(iv) of the definition of "Qualifying Substitute Mortgage Loan", the parties
hereto acknowledge that an Appraisal satisfying the requirements of the
definition of such term may not have been obtained and the original
Loan-to-Value Ratio shall be based upon the valuation method used by the Seller
in calculating the loan-to-value ratio at the time of origination of the
applicable Deleted Mortgage Loan.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer pursuant to which a Lock-Box
Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Wells Fargo Bank, National Association and
its permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means for each Distribution Date
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Master Servicer and in such media as may be agreed upon by the Master Servicer
and the Trustee containing such information regarding the Mortgage Loans as will
permit the Trustee to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Trustee and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans), the Master Servicing Fee Rate
applicable to such month (determined in the same manner as the applicable
Mortgage Rate is determined for such Mortgage Loan for such month) multiplied by
the Scheduled Principal Balance of each Mortgage Loan immediately before the Due
Date occurring in such month, subject to reduction in respect of Compensating
Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, 0.02% per annum.
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in the Mortgage
Loan Purchase Agreement.
"MATURITY DATE" means, with respect to any Mortgage Loan as of any
date of determination, the date on which the last payment of principal is due
and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor
by the Master Servicer in connection with a modification of any Mortgage Loan
other than a Specially Serviced Mortgage Loan or collected by the Special
Servicer in connection with the modification of a Specially Serviced Mortgage
Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal balance of
a Mortgage Loan as a result of a modification thereof in accordance with the
terms hereof, (ii) any expenses connected with such modification, to the extent
(x) reimbursable to the Trustee, the Special Servicer or the Master Servicer and
(y) not recovered from the Mortgagor or (iii) in the case of a modification of a
Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due
Date, of the amount of interest that would have accrued at a rate equal to the
original Mortgage Rate, over interest that actually accrued on such Mortgage
Loan during the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the Maturity
Date, Mortgage Rate, principal balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a prepayment premium,
yield maintenance payment or percentage premium in connection with a principal
prepayment (and shall not include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Trustee monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of servicing fees paid to the Master Servicer, the Primary
Servicer and the Special Servicer; (xi) the amount of Unpaid Interest, Realized
Losses or Expense Losses, if any, incurred with respect to the Mortgage Loans,
including a breakout by type of such Expense Losses; (xii) the aggregate amount
of Servicing Advances and P&I Advances outstanding separately stated that have
been made by the Master Servicer, the Trustee and the Fiscal Agent; and (xiii)
the amount of any Appraisal Reductions effected during the related Collection
Period on a loan-by-loan basis and the total Appraisal Reductions in effect as
of such Distribution Date. In the case of information furnished pursuant to
subclauses (i), (ii) and (xi) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount of the
Certificates for all Certificates of each applicable Class.
"MOODY'S" means Moody's Investors Service, Inc. or its successor
in interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-PRIN, without recourse, representation or warranty" or
if the original Mortgage Note is not included therein, then a lost note
affidavit with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed) or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller stating that such
original Mortgage has been sent to the appropriate public recording official for
recordation or (B) in the case of an original Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such Mortgage is recorded that such copy is a true and complete copy of the
original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true copies of such modifications, consolidations and
extensions certified by the Seller together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the Seller
stating that such original modification, consolidation or extension agreement
has been dispatched or sent to the appropriate public recording official for
recordation or (B) in the case of an original modification, consolidation or
extension agreement that has been lost after recordation, a certification by the
appropriate county recording office where such document is recorded that such
copy is a true and complete copy of the original recorded modification,
consolidation or extension agreement, and the originals of all assumption
agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in favor
of "LaSalle Bank National Association, as Trustee for Morgan Stanley Dean Witter
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN";
(v) originals of all intervening assignments of Mortgage, if any, with
evidence of recording thereon or, if such original assignments of Mortgage have
been delivered to the appropriate recorder's office for recordation, certified
true copies of such assignments of Mortgage certified by the Seller, or in the
case of an original blanket intervening assignment of Mortgage retained by the
Seller, a copy thereof certified by the Seller or, if any original intervening
assignment of Mortgage has not yet been returned on or prior to the 45th day
following the Closing Date from the applicable recording office or has been
lost, a true and correct copy thereof, together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the Seller
stating that such original intervening assignment of Mortgage has been sent to
the appropriate public recording official for recordation or (B) in the case of
an original intervening assignment of Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the Seller to be a true
and complete copy of the original Assignment of Leases submitted for recording,
together with (A) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by the
Seller to be a true and complete copy of the original assignment submitted for
recording, and (B) an original assignment of such Assignment of Leases, in
recordable form, signed by the holder of record in favor of "LaSalle Bank
National Association, as Trustee for Morgan Stanley Dean Witter Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-PRIN," which
assignment may be effected in the related Assignment of Mortgage;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) UCC financing statements (together with all assignments thereof
to the Trustee) executed and delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any lock-box agreements and intercreditor agreements,
if any, related to any Mortgage Loan;
(xii) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, which shall be held by the Primary
Servicer on behalf of the Trustee, and applied, drawn, reduced or released in
accordance with documents evidencing or securing the applicable Mortgage Loan,
this Agreement and the applicable Primary Servicing Agreement; and
(xiii) the original environmental indemnity agreement, if any,
related to any Mortgage Loan.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3.
"MORTGAGE LOAN PURCHASE AGREEMENT" means that certain Mortgage Loan
Purchase Agreement between Principal and the Depositor dated as of September 1,
2000, a form of which is attached hereto as Exhibit K.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means the schedule
attached hereto as Schedule I, which identifies each Mortgage Loan, as such
schedule may be amended from time to time pursuant to Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per annum rate
at which interest accrues on such Mortgage Loan.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, (i) with respect to all Mortgage Loans which are not
Specially Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment
Interest Shortfalls for such Mortgage Loans over the sum of (A) the Master
Servicing Fee for the related Collection Period calculated in respect of all
such Mortgage Loans and (B) the aggregate Prepayment Interest Excesses for such
Collection Period for all Mortgage Loans which are not Specially Serviced
Mortgage Loans, and (ii) with respect to all Specially Serviced Mortgage Loans
on which there have been voluntary Principal Prepayments (not from Liquidation
Proceeds or from modifications to Specially Serviced Mortgage Loans), the
excess, if any, of aggregate Prepayment Interest Shortfalls for such Mortgage
Loans over the sum of (A) the Special Servicing Fee for the related Collection
Period calculated in respect of all Specially Serviced Mortgage Loans (including
REO Mortgage Loans) and (B) the aggregate Prepayment Interest Excesses for such
Collection Period for all Specially Serviced Mortgage Loans (including REO
Mortgage Loans).
"NET MORTGAGE RATE" means, as to any Mortgage Loan, a rate per annum
equal to the Mortgage Rate for the related Mortgage Loan as of the Cut-Off Date
(and without regard to any modification, waiver or amendment of the terms
thereof following the Cut-Off Date) minus the Administrative Cost Rate.
"NEW LEASE" means any lease of any REO Property entered into on
behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action will neither cause either REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax to
be imposed on either REMIC Pool or the Trust.
"NONECONOMIC RESIDUAL INTEREST" means a Residual Interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"NONRECOVERABLE ADVANCE" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) previously made or proposed to be
made by the Master Servicer, the Trustee or the Fiscal Agent that, in its sole
discretion, exercised in good faith and, with respect to the Master Servicer, in
accordance with the Servicing Standard, will not be or, in the case of a current
delinquency, would not be, ultimately recoverable, from Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds or from any
collections with respect to the related Mortgage Loan or REO Property, as
evidenced by an Officer's Certificate delivered pursuant to Section 4.4. Such
Officer's Certificate shall be delivered to the Trustee (upon which the Trustee
may conclusively rely) or to the Depositor (if the Trustee or the Fiscal Agent
is delivering such Officer's Certificate) and (in either case) to the Special
Servicer and the Trustee in the time periods as specified in Section 4.4 and
shall include the information and reports set forth in Section 4.4. In
determining whether an Advance with respect to any Mortgage Loan will be
recoverable, the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, shall take into account amounts that may be realized on the related
Mortgaged Property in its "as is" or then current condition and occupancy.
Absent bad faith, the Master Servicer's determination as to the recoverability
of any Advance shall be conclusive and binding on the Certificateholders and
may, in all cases, be relied on by the Trustee and the Fiscal Agent.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class F, Class G, Class H, Class J, Class K, Class L,
Class M Certificate, Class X or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer and
(y) in the case of the Seller, a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, or any Senior Vice
President, Vice President or Assistant Vice President.
"OPERATING ADVISER" shall have the meaning specified in Section
9.37(a).
"OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the MBA/CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee, reasonably acceptable in form and substance to the Trustee, and who
is not in-house counsel to the party required to deliver such opinion but who,
in the good faith judgment of the Trustee, is Independent outside counsel
knowledgeable of the issues occurring in the practice of securitization with
respect to any such opinion of counsel concerning the taxation, or status as a
REMIC for tax purposes, of the Trust or either REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due (without regard to grace periods)
during the related Collection Period was not received by the Master Servicer as
of the related Determination Date (or, in the case of Post Determination Date
Mortgage Loans, as of the Master Servicer Remittance Date), the portion of such
Scheduled Payment not received; (ii) with respect to any Balloon Mortgage Loan
(including any REO Property as to which the related Mortgage Loan provided for a
Balloon Payment) as to which a Balloon Payment was due during or prior to the
related Collection Period but was delinquent, in whole or in part, as of the
related Determination Date (or, in the case of Post Determination Date Mortgage
Loans, as of the Master Servicer Remittance Date), an amount equal to the
excess, if any, of the Assumed Scheduled Payment for such Balloon Mortgage Loan
for the related Collection Period, over any Late Collections received in respect
of such Balloon Payment during such Collection Period; and (iii) with respect to
each REO Property, an amount equal to the excess, if any, of the Assumed
Scheduled Payment for the Mortgage Loan related to such REO Property during the
related Collection Period (or as to Post Determination Date Mortgage Loans, due
on the related Due Date during the month in which the related Collection Period
ends), over remittances of REO Income to the Master Servicer by the Special
Servicer, reduced by any amounts required to be paid as taxes on such REO Income
(including taxes imposed pursuant to Section 860G(c) of the Code); provided,
however, that the interest portion of any Scheduled Payment or Assumed Scheduled
Payment shall be advanced at a per annum rate equal to the sum of the Net
Mortgage Rate relating to such Mortgage Loan or Mortgage Loan relating to such
REO Property and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee and the Primary Servicing Fees; and provided, further, that
the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which
has been modified shall be calculated based on its terms as modified and
provided, further, that the amount of any P&I Advance with respect to a Mortgage
Loan as to which there has been an Appraisal Reduction will be an amount equal
to the product of (i) the amount required to be advanced without giving effect
to this proviso and (ii) a fraction, the numerator of which is the Principal
Balance of such Mortgage Loan as of the immediately preceding Determination Date
less any Appraisal Reduction and the denominator of which is the Principal
Balance of the Mortgage Loan as of such Determination Date. All P&I Advances for
any Mortgage Loans that have been modified shall be calculated on the basis of
their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or REO
Property, the amount of the P&I Advance for each Mortgage Loan computed for any
Distribution Date.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to
any Class of REMIC I Regular Interests or REMIC Regular Certificates, for the
first Distribution Date, the rate set forth in the Preliminary Statement hereto.
For any Distribution Date occurring thereafter, the Pass-Through Rates for (i)
the REMIC I Regular Interests shall equal the Weighted Average Net Mortgage Rate
for such Distribution Date, (ii) the Class C, Class D and Class E Certificates,
the Weighted Average Net Mortgage Rate for such Distribution Date, (iii) the
Class B Certificates, the Weighted Average Net Mortgage Rate for such
Distribution Date less 0.12%, (iv) the Class X Certificates, the per annum rate
equal to the quotient of the Accrued Certificate Interest thereon for such
Distribution Date and the Class X Notional Amount, (v) the Class A-1, Class A-2
and Class A-3 Certificates, the fixed rate corresponding to such Class set forth
in the Preliminary Statement hereto and (vi) the Class A-4, Class F, Class G,
Class H, Class J, Class K, Class L and Class M Certificates the lesser of (A)
the fixed rate corresponding to each such Class set forth in the Preliminary
Statement hereto and (B) the Weighted Average Net Mortgage Rate for such
Distribution Date.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization or Disqualified Foreign Person.
"PERSON" means 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.
"PLACEMENT AGENT" means Morgan Stanley & Co. Incorporated.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has a reasonable amount of experience conducting such assessments.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 C.F.R.ss.2510.3-101.
"POST DETERMINATION DATE MORTGAGE LOANS" means, with respect to a
Distribution Date, the Mortgage Loans with Due Dates that occur and, if
applicable, grace periods that expire, after the related Determination Date.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means, in the case of a Mortgage Loan,
for any Distribution Date and the related Collection Period, during which a full
or partial Principal Prepayment is made after the Due Date for such Mortgage
Loan through and including the last day of the Collection Period, the amount of
interest that accrues on the Mortgage Loan from such Due Date to the date such
payment was made (net of the Master Servicing Fee, the Primary Servicing Fees,
the Special Servicing Fee, and the Trustee Fee), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including early payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period. The
amount of any Prepayment Interest Shortfall shall equal the excess of (A) the
aggregate amount of interest which would have accrued on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Primary Servicing Fees, the Special Servicing and the Trustee
Fee) over (B) the aggregate interest that did so accrue through the date such
payment was made.
"PREPAYMENT PREMIUM" means with respect to any Distribution Date,
the aggregate of all prepayment premiums, yield maintenance payments or
percentage premiums, if any, received during the related Collection Period in
connection with Principal Prepayments.
"PRIMARY SERVICER" means Principal Capital Management, LLC, and its
permitted successors and assigns.
"PRIMARY SERVICING AGREEMENT" means the agreement between the
Primary Servicer and the Master Servicer, dated as of September 1, 2000, a form
of which is attached hereto as Exhibit G, under which the Primary Servicer
services the Mortgage Loans.
"PRIMARY SERVICING FEE" means with respect to each Mortgage Loan,
the monthly fee payable to the Primary Servicer, as more specifically described
in the Primary Servicing Agreement.
"PRIMARY SERVICING FEE RATE" means 0.04875% per annum.
"PRINCIPAL" has the meaning assigned in the Preliminary Statement
hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan or REO
Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan or the related
REO Mortgage Loan outstanding as of the Cut-Off Date after taking into account
all principal and interest payments made or due (without regard to grace
periods) on or prior to the Cut-Off Date (assuming, for any Mortgage Loan with a
Due Date in September 2000 that is not September 1, 2000, that principal and
interest payments for such month were paid on the Cut-Off Date), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal on such Mortgage Loan that have been collected or received during any
preceding Collection Period, other than any Scheduled Payments due in any
subsequent Collection Period, and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan during any related Collection
Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L and Class M Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
sum of the following amounts: (i) the principal portion of all Scheduled
Payments (other than the principal portion of Balloon Payments) and any Assumed
Scheduled Payments due or deemed due, as the case may be, in respect of the
Mortgage Loans and any REO Mortgage Loans for their respective Due Dates
occurring during the related Collection Period (or, in the case of Post
Determination Date Mortgage Loans, the Scheduled Payments (other than the
principal portion of Balloon Payments) and any Assumed Scheduled Payments that
are due, or deemed due, as the case may be for their respective Due Dates
occurring during the month in which such Distribution Date occurs); (ii) all
payments (including Principal Prepayments and the principal portion of Balloon
Payments) and any other collections (including Liquidation Proceeds (other than
the portion thereof, if any, constituting Excess Liquidation Proceeds),
Condemnation Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income)
received on or in respect of the Mortgage Loans during the related Collection
Period and that were identified and applied by the Master Servicer as recoveries
of principal thereof, in each case net of any portion of such payment or other
collection that represents a recovery of the principal portion of any Scheduled
Payment (other than a Balloon Payment) due, or of the principal portion of any
Assumed Scheduled Payment deemed due, in respect of the related Mortgage Loan on
a Due Date occurring during or prior to the related Collection Period and not
previously recovered (or, in the case of Post Determination Date Mortgage Loans,
due or deemed due on a Due Date occurring in the month in which the related
Collection Period ends), exclusive, however, of any Principal Prepayments
received during the related Collection Period that the Master Servicer does not
remit for inclusion in the Available Distribution Amount for such Distribution
Date).
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan which is received or recovered in
advance of its scheduled Due Date and applied to reduce the principal balance of
the Mortgage Loan in advance of its scheduled Due Date, including, without
limitation, all proceeds, to the extent allocable to principal, received from
the payment of cash in connection with a substitution shortfall pursuant to
Section 2.3.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in the
Preliminary Statement hereto.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PROSPECTUS SUPPLEMENT" means, collectively, the Preliminary
Prospectus Supplement and the Final Prospectus Supplement.
"PURCHASE PRICE" means, with respect to the repurchase of a Mortgage
Loan or REO Property pursuant to Article II of this Agreement or the purchase of
a Mortgage Loan pursuant to Section 9.36, a price equal to the sum of (A) 100%
of the unpaid principal balance of such Mortgage Loan (or deemed principal
balance, in the case of an REO Property), plus (B) accrued but unpaid interest
thereon calculated at the Mortgage Rate to, but not including, the Due Date in
the Collection Period (or in the case of Post Determination Date Mortgage Loans,
the Due Date occurring in the month in which the related Collection Period ends)
in which such purchase occurs, plus (C) the amount of any expenses related to
such Mortgage Loan or REO Property (including any Servicing Advances, Advance
Interest related to such Mortgage Loan and any Special Servicing Fees and
Liquidation Fees) that are reimbursable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, plus (D) if such Mortgage Loan is
being repurchased or substituted for by Seller pursuant to the Mortgage Loan
Purchase Agreement, all expenses reasonably incurred or to be incurred by the
Primary Servicer, the Master Servicer, the Special Servicer, the Depositor or
the Trustee in respect of the Breach or Material Document Defect giving rise to
the repurchase or substitution obligation (and that are not otherwise included
in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan by Seller
pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and REO
Properties by the Depositor, the Master Servicer, the Special Servicer or the
holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained from each Rating Agency with respect to
such Person).
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan, an
insurance company duly qualified as such under the laws of the state in which
the related Mortgaged Property is located, duly authorized and licensed in such
state to transact the applicable insurance business and to write the insurance
provided, and that has a claim paying ability rating no lower than two ratings
categories (without regard to pluses or minuses or numerical qualifiers) lower
than the highest rating of any outstanding Class of Certificates from time to
time, but in no event lower than "Baa1" by Moody's (or rated B+:VI by A.M.
Best), or if not so rated, then Moody's has issued a Rating Agency Confirmation,
and "BBB" by S&P if rated by S&P or if not rated by S&P, then S&P has issued a
Rating Agency Confirmation, and (ii) with respect to the Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond an insurance company that
has a claim paying ability no lower than two ratings categories (without regard
to pluses or minuses or numerical qualifiers) lower than the highest rating of
any outstanding Class of Certificates from time to time, but in no event lower
than "A1" by Moody's if rated by Moody's, or if not so rated, then rated A:IX by
A.M. Best or Moody's has issued a Rating Agency Confirmation, and "A" by S&P if
rated by S&P or if not rated by S&P, then S&P has issued a Rating Agency
Confirmation, or (iii) in either case, a company not satisfying clause (i) or
(ii) but with respect to which Rating Agency Confirmation is obtained.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has a principal balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the principal balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the principal balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to
the principal balance on the date of substitution divided by its current
Appraised Value) not higher than the current Loan-to-Value Ratio of the Deleted
Mortgage Loan; (v) will comply with all of the representations and warranties
relating to Mortgage Loans set forth herein, as of the date of substitution;
(vi) has a Phase I Environmental Report relating to the related Mortgaged
Property in its Mortgage Files and such Phase I Environmental Report does not,
in the good faith reasonable judgment of the Special Servicer, consistent with
the Servicing Standard raise material issues that have not been adequately
addressed; (vii) has an engineering report relating to the related Mortgaged
Property in its Mortgage Files and such engineering report does not, in the good
faith reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; and
(viii) as to which the Trustee has received an Opinion of Counsel, at the
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 Final
Rated Distribution Date, and provided, further, that no such Mortgage Loan shall
be substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained, and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of
such substitution (provided, however, that such approval of the Operating
Adviser may not be unreasonably withheld). In the event that either one mortgage
loan is substituted for more than one Deleted Mortgage Loan or more than one
mortgage loan is substituted for one or more Deleted 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) above and the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis. Whenever a Qualifying
Substitute Mortgage Loan is substituted for a Deleted 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, which shall deliver a copy of such
certification to the Special Servicer, the Trustee and the Operating Adviser
promptly, and in any event within five Business Days following the Trustee's
receipt of such certification.
"RATING AGENCIES" means Moody's and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED INTEREST LOSS" means (i) in the case of a Liquidation
Realized Loss, the portion of any Liquidation Realized Loss that exceeds the
Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to accrued
interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an
Expense Loss resulting in any period from the payment of the Special Servicing
Fee and any Expense Losses set forth in the last sentence of the definition of
"Realized Principal Loss" or (iv) in the case of a Modification Loss, a
Modification Loss described in clause (iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss. Realized Losses on a Mortgage Loan
are allocated first to the principal balance of, and then to interest on such
Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means (i) in the case of a Liquidation
Realized Loss, the amount of such Realized Loss, to the extent that it does not
exceed the principal balance of the Mortgage Loan (or deemed principal balance,
in the case of REO Property), (ii) in the case of a Modification Loss, the
amount of such Modification Loss described in clause (i) of the definition
thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Realized
Loss attributable to the reduction in the principal balance of the related
Mortgage Loan, and (iv) in the case of an Expense Loss, the portion thereof not
treated as a Realized Interest Loss. Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to the Mortgage Loans that were identified as allocable to principal,
such excess shall be treated as a Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan that was modified, based on the
modified terms), (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event or such amounts have been forgiven.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and the Distribution Account, the Insurance Policies and any
REO Properties, for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I REGULAR INTEREST A" means the REMIC I Regular Interest A-1,
REMIC I Regular Interest A-2, REMIC I Regular Interest A-3 and REMIC I Regular
Interest A-4, collectively.
"REMIC I REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-1 Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-2 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-3 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST A-4" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having an initial Certificate Balance equal to the aggregate
Certificates Balance of the Class A-4 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class D Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class F Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average Net Mortgage Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the REMIC I Regular
Interest A-1, REMIC I Regular Interest A-2, REMIC I Regular Interest A-3, REMIC
I Regular Interest A-4, REMIC I Regular Interest B, REMIC I Regular Interest C,
REMIC I Regular Interest D, REMIC I Regular Interest E, REMIC I Regular Interest
F, REMIC I Regular Interest G, REMIC I Regular Interest H, REMIC I Regular
Interest J, REMIC I Regular Interest K, REMIC I Regular Interest L and REMIC I
Regular Interest M.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests for which a REMIC election has been made pursuant to
Section 12.1(a) hereof.
"REMIC II CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC POOL" means each of the two segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A, Class
X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L and Class M Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO Property
during such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the related
Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Trustee in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class
R-I Certificates and, with respect to REMIC II, the Class R-II Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed Securities
Trust Services Group each with specific responsibilities for the matters
contemplated by this Agreement and when used with respect to any successor
Trustee or Fiscal Agent, any Vice President, Assistant Vice President, corporate
trust officer or any assistant corporate trust officer.
"REVERSE SEQUENTIAL ORDER" means, as to REMIC II, sequentially to
the Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A Certificates.
"REVIEW THRESHOLD LOAN" has the meaning set forth in Section 8.7(b).
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act, a single, permanent global
Certificate, in definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. or its successor in interest.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date), whenever received, and taking account of any modifications thereof and
the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts).
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan or REO Mortgage Loan, for purposes of performing calculations with respect
to any Distribution Date, the Principal Balance thereof minus the aggregate
amount of any P&I Advances of principal previously made with respect to such
Mortgage Loan or REO Mortgage Loan.
"SELLER" means Principal.
"SENIOR CERTIFICATES" means the Class A and Class X Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of the Master Servicer's, Special Servicer's, the Trustee's or the
Fiscal Agent's, as the case may be, directors, officers or employees and is
maintained in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents
listed in the definition of Mortgage File relating to a Mortgage Loan and the
other documents referenced in Section 2.1(d).
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, designated as a
Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by the Master Servicer, the Special Servicer (subject to Section
4.6(e)), the Trustee or the Fiscal Agent, as the case may be, to protect and
preserve the security for such Mortgage Loan.
"SERVICING OFFICER" means any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans whose name and specimen signature appear on a list of
servicing officers or employees furnished to the Trustee by the Master Servicer
and signed by an officer of the Master Servicer, as such list may from time to
time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer and
the Special Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care, skill,
prudence and diligence with which the Master Servicer or the Special Servicer,
as the case may be, services and administers similar mortgage loans for other
third-party portfolios, giving due consideration to customary and usual
standards of practice of prudent institutional commercial mortgage
lenders servicing their own mortgage loans and to the maximization of the net
present value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Master Servicer or
the Special Servicer, as the case may be, uses for loans which it owns and which
are similar to the Mortgage Loans, giving due consideration to the maximization
of the net present value of the mortgage loans;
but without regard to: (I) any other relationship that the Master Servicer, the
Special Servicer, the Depositor or the Trustee, or any Affiliate of any of them
may have with the related Mortgagor or any Affiliate of the Mortgagor, the
Depositor or Seller; (II) the ownership of any Certificate by the Master
Servicer, the Special Servicer or any Affiliate of any of them; (III) the Master
Servicer's, Fiscal Agent's or the Trustee's obligation to make Advances and
Servicing Advances as specified herein or to incur servicing expenses; (IV) the
Master Servicer's, the Special Servicer's or the Primary Servicer's right to
receive compensation for its services hereunder or with respect to any
particular transaction; (V) the ownership or servicing or management for others
by the Master Servicer, the Special Servicer or the Primary Servicer of any
other mortgage loans or property; (VI) intentionally deleted; (VII) the
ownership of any Junior Indebtedness by the Master Servicer, the Primary
Servicer or Special Servicer or any Affiliate with respect to the Mortgaged
Property securing any Mortgage Loan; or (VIII) any obligation of the Seller to
repurchase any Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment in accordance with the Servicing Standard, that payment is unlikely to
be made on or before the 60th day succeeding the date the Balloon Payment was
due, or any other payment is more than 60 days past due or has not been made on
or before the second Due Date following the due date such payment was due; (ii)
any Mortgage Loan as to which, to the Master Servicer's knowledge, the Mortgagor
has consented to the appointment of a receiver or conservator in any insolvency
or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of a
decree or order issued under a bankruptcy, insolvency or similar law and such
decree or order shall have remained undischarged or unstayed for a period of 30
days; (iii) any Mortgage Loan as to which the Master Servicer shall have
received notice of the foreclosure or proposed foreclosure of any other lien on
the Mortgaged Property; (iv) any Mortgage Loan as to which the Master Servicer
has knowledge of a default (other than a failure by the related Mortgagor to pay
principal or interest) which in the good faith reasonable judgment of the Master
Servicer materially and adversely affects the interests of the
Certificateholders and which has occurred and remains unremedied for the
applicable grace period specified in such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any Mortgage Loan as to which the Mortgagor admits
in writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors or voluntarily
suspends payment of its obligations; and (vi) any Mortgage Loan as to which, in
the good faith reasonable judgment of the Master Servicer, (a) a payment default
is imminent or is likely to occur within 60 days, or (b) any other default is
imminent or is likely to occur within 60 days and such default, in the judgment
of the Master Servicer, is reasonably likely to materially and adversely affect
the interests of the Certificateholders.
"SPECIAL SERVICER" means Principal Capital Management, LLC or any
successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports substantially in
the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day succeeding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan which is a Specially Serviced Mortgage Loan (including REO
Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan for
such month) multiplied by the Scheduled Principal Balance of such Specially
Serviced Mortgage Loan immediately before the Due Date occurring in such month,
subject to reduction in respect of Compensating Interest as set forth in Section
9.11.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee and the Master Servicer by the Special Servicer signed by an officer of
the Special Servicer, as such list may from time to time be amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan with respect to which the Master Servicer has
notified the Special Servicer and the Trustee that a Servicing Transfer Event
has occurred (which notice shall be effective upon receipt) and the Special
Servicer has received all information, documents and records relating to such
Mortgage Loan as reasonably requested by the Special Servicer to enable it to
assume its duties with respect to such Mortgage Loan. A Specially Serviced
Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan from and
after the date on which the Special Servicer notifies the Master Servicer and
the Trustee, in accordance with Section 8.1(b), that such Mortgage Loan has
become a Rehabilitated Mortgage Loan with respect to such Servicing Transfer
Event, unless and until the Master Servicer notifies the Special Servicer and
the Trustee, in accordance with Section 8.1(b) that another Servicing Transfer
Event with respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L and
Class M Certificates.
"SUBORDINATE INTERESTS" means, collectively, REMIC I Regular
Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest G,
REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular Interest
K, REMIC I Regular Interest L and REMIC I Regular Interest M.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC created pursuant to Section 12.1 hereof and pursuant to
Treasury Regulations Section 1.860F-4(d) and temporary Treasury Regulations
Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b)
herein.
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the
assets which consist of all the assets of REMIC I (including the Mortgage Loans,
such amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Insurance Policies, any REO Properties and other items
referred to in Section 2.1(a) hereof) and REMIC II.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or
its successor-in-interest, or if any successor trustee, or any co-trustee shall
be appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans), the portion of the Trustee Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan for
such month) multiplied by the Scheduled Principal Balance of each Mortgage Loan
immediately before the Due Date occurring in such month.
"TRUSTEE FEE RATE" means 0.0035% per annum.
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File pursuant to
this Agreement; provided that whenever the term "Trustee Mortgage File" is used
to refer to documents actually received by the Trustee or a Custodian on its
behalf, such terms shall not be deemed to include such documents required to be
included therein unless they are actually so received.
"UNDERWRITER" means each of Morgan Stanley & Co. Incorporated and
Goldman, Sachs & Co., or each of their respective successors in interest.
"UNPAID INTEREST" means, on any Distribution Date with respect to
any Class of Interests or Certificates (other than the Residual Certificates),
the portion of Distributable Certificate Interest for such Class remaining
unpaid as of the close of business on the preceding Distribution Date, plus one
month's interest thereon at the applicable Pass-Through Rate other than unpaid
interest relating to Net Aggregate Prepayment Interest Shortfalls.
"U.S. PERSON" means (i) any natural person resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States or any state thereof or the District of Columbia,
(iii) any estate of which an executor or administrator is a U.S. Person (other
than an estate governed by foreign law and of which at least one executor or
administrator is a non-U.S. Person who has sole or shared investment discretion
with respect to its assets), (iv) any trust of which any trustee is a U.S.
Person (other than a trust of which at least one trustee is a non-U.S. Person
and has sole or shared investment discretion with respect to its assets), (v)
any agency or branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-U.S. Person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
Person principally for the purpose of investing in securities not registered
under the 1933 Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(A) under the 1933 Act who
are not natural persons, estates or trusts); provided, however, that the term
"U.S. Person" shall not include (A) a branch or agency of a U.S. Person that is
located and operating outside the United States for valid business purposes as a
locally regulated branch or agency engaged in the banking or insurance business,
(B) any employee benefit plan established and administered in accordance with
the law, customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(o)(7) of Regulation S under
the 1933 Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE NET MORTGAGE RATE" means, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates for the
Mortgage Loans, weighted on the basis of their respective Principal Balances as
of the close of business on the preceding Distribution Date.
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan, equal to the product of (x) 1.0% and (y) the amount of each
collection of interest (other than default interest) and principal received on
such Mortgage Loan for so long as it remains a Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a) Calculations
required to be made by the Trustee pursuant to this Agreement with respect to
any Mortgage Loan shall be made based upon current information as to the terms
of the Mortgage Loans and reports of payments received from the Master Servicer
on such Mortgage Loans and payments to be made to the Trustee as supplied to the
Trustee by the Master Servicer. The Trustee shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer and
may conclusively rely upon such information in making such calculations. If,
however, a Responsible Officer of the Trustee has actual knowledge of an error
in the calculations, the Trustee shall inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents, any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing shall be applied first to overdue
interest due with respect to such Mortgage Loan at the Mortgage Rate thereof,
next to current interest due with respect to such Mortgage Loan at the Mortgage
Rate thereof, next to the reduction of the principal balance of such Mortgage
Loan to zero if such Mortgage Loan has been accelerated and in respect of any
scheduled payments of principal then due to the extent that such Mortgage Loan
has not yet been accelerated, next to any default interest and other amounts due
on such Mortgage Loan and finally to Late Fees due with respect to such Mortgage
Loan.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest on any Certificate shall be calculated based upon a 360-day year
consisting of twelve 30-day months and Pass-Through Rates shall be carried out
to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest penny.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Monthly Certificateholders Report, Special Servicer
Remittance Date, Master Servicer Remittance Date or Determination Date, as
applicable, immediately preceding such Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish the Trust, appoint the Trustee as trustee of the
Trust, assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under the Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii)
the Initial Deposit and (iv) all other assets included or to be included in
REMIC I for the benefit of REMIC II. Such assignment includes all interest and
principal received or receivable on or with respect to the Mortgage Loans and
due after the Cut-Off Date. The transfer of the Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, Seller pursuant to the Mortgage Loan Purchase
Agreement to deliver to and deposit with, or cause to be delivered to and
deposited with, the Trustee or a Custodian appointed thereby, on or before the
Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to
the Trustee as specified in clause (i) of the definition of "Mortgage File."
Seller is required, pursuant to the Mortgage Loan Purchase Agreement, to deliver
to the Trustee the remaining documents constituting the Mortgage File for each
Mortgage Loan within the time period set forth therein. None of the Trustee, the
Fiscal Agent, any Custodian, the Master Servicer or the Special Servicer shall
be liable for any failure by Seller or the Depositor to comply with the document
delivery requirements of the Mortgage Loan Purchase Agreement and this Section
2.1(b).
(c) The Seller shall, at the expense of the Seller, as to each
Mortgage Loan, promptly (and in any event within 45 days following the receipt
thereof) cause to be submitted for recording or filing, as the case may be, in
the appropriate public office for real property records or UCC financing
statements, as appropriate, each assignment to the Trustee referred to in
clauses (iv), (vi)(B) and (ix) of the definition of "Mortgage File". Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording or filing; provided that in those
instances where the public recording office retains the original Assignment of
Mortgage, assignment of Assignment of Leases or assignment of UCC financing
statements, the Master Servicer shall obtain therefrom at the expense of the
Seller a certified copy of the recorded original. The Master Servicer shall
forward copies thereof to the Trustee and the Special Servicer. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Master Servicer shall direct Seller
pursuant to the applicable Mortgage Loan Purchase Agreement promptly to prepare
or cause to be prepared a substitute therefor or cure such defect, as the case
may be, and thereafter the Master Servicer shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate.
(d) All relevant servicing documents and records in the possession
of the Depositor or the Seller that relate to the Mortgage Loans and that are
not required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered (subject to the requirements of the Primary Servicing
Agreement) to the Master Servicer on or before the Closing Date and shall be
held by the Master Servicer on behalf of the Trustee in trust for the benefit of
the Certificateholders. The Depositor shall deliver or cause the Seller to
deliver to the Special Servicer a copy of each Mortgage File to the extent that
(i) such copy has not previously been delivered to the Special Servicer and (ii)
the Special Servicer requests (in writing) such copy within 180 days following
the Closing Date. The Depositor shall deliver or cause the Seller to deliver
such copy within a reasonable period following such request by the Special
Servicer.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before
the Closing Date a copy of a fully executed counterpart of the Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreement shall contain the representations and
warranties made by the Seller with respect to each Mortgage Loan as of the
Closing Date.
(f) Concurrently herewith, the Depositor has acquired the Mortgage
Loans from Seller. The Depositor will deliver the original Mortgage Notes (or
lost note affidavits with copies of the related Mortgage Notes, as described in
the definition of Mortgage File) relating to the Mortgage Loans to the Trustee,
endorsed as otherwise provided herein, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
Seller is required under the Mortgage Loan Purchase Agreement to deliver
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the Mortgage
Loans shall be deemed to have been transferred from Seller to the Depositor and
the Mortgage Loans shall be deemed to have been transferred from the Depositor
to the Trustee on behalf of the Certificateholders.
(g) The Primary Servicer shall, as to each Mortgage Loan that is
secured by the interest of the related Mortgagor under a ground lease, at its
own expense, promptly (and in any event within the later of (x) 45 days of the
Closing Date and (y) delivery to the Primary Servicer of a copy of the ground
lease by the Seller) notify the related ground lessor of the transfer of such
Mortgage Loan to the Trust pursuant to this Agreement and inform such ground
lessor that any notices of default under the related ground lease should
thereafter be forwarded to the Primary Servicer.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it and (ii) the
REMIC I Regular Interests, in each case, in trust for the use and benefit of all
present and future Certificateholders.
Upon the execution and delivery of this Agreement in respect of the
Initial Certification, and within 75 days after the execution and delivery of
this Agreement in respect of the Final Certification, the Trustee shall examine
the Mortgage Files in its possession, and shall deliver to the Depositor, the
Seller, the Master Servicer, the Special Servicer and the Operating Adviser a
certification (the "Initial Certification" and the "Final Certification",
respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2
hereto) (i) in the case of the Initial Certification, as to each Mortgage Loan
listed in the Mortgage Loan Schedule, except as may be specified in the schedule
of exceptions to Mortgage File delivery attached thereto, to the effect that:
(A) all documents pursuant to clause (i) of the definition of Mortgage File are
in its possession, (B) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, and (C) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of Mortgage File, and
(ii) in the case of the Final Certification, as to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as may be specified in the schedule of
exceptions to Mortgage File delivery attached thereto, to the effect that: (A)
all documents pursuant to clauses (i), (ii), (iv), (v) and (viii) of the
definition of Mortgage File required to be included in the Mortgage File, and
with respect to all documents specified in the other clauses of the definition
of Mortgage File to the extent known by a Responsible Officer of the Trustee to
be required pursuant to this Agreement, are in its possession, (B) such
documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (C) based on its examination and only as to the
Mortgage Note and Mortgage, the street address of the Mortgaged Property and the
name of the Mortgagor set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed and each
Assignment of Mortgage has been delivered as provided in clause (i) and clause
(iv), respectively, of the definition of Mortgage File. Notwithstanding the
foregoing, the delivery of a commitment to issue a Title Insurance Policy in
lieu of the delivery of the actual Title Insurance Policy shall not be
considered a Document Defect with respect to any Mortgage File if such actual
Title Insurance Policy is delivered to the Trustee or a Custodian on its behalf
not later than the 180th day following the Closing Date. The Trustee shall
deliver to the Master Servicer, the Special Servicer and the Seller a copy of
such Final Certification.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage to the Master
Servicer, the Special Servicer and the Seller, and if any recorded assignment of
Mortgage has not been received by the Trustee by such time, the Trustee shall
provide information in such confirmation on the status of missing assignments.
The Trustee agrees, if requested by Seller, to use reasonable efforts to record
any unrecorded Assignments of Mortgage to the extent it has received such
documents (including effecting such recordation process through or cooperating
with the Seller), such recordation to be at the expense of the Seller. In giving
the certifications required above, the Trustee shall be under no obligation or
duty to inspect, review or examine any such documents, instruments, securities
or other papers to determine whether they or the signatures thereon are valid,
legal, genuine, enforceable, in recordable form or appropriate for their
represented purposes, or that they are other than what they purport to be on
their face, or to determine whether any Mortgage File should include any
assumption agreement, modification agreement, consolidation agreement, extension
agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty,
written assurance, substitution agreement, lock box agreement, intercreditor
agreement, management agreement or letter of credit.
If, in the course of such review, the Trustee finds any document
constituting a part of a Trustee Mortgage File which does not meet the
requirements of clauses (A) through (D) in the second preceding paragraph, the
Trustee shall promptly notify the Seller, the Master Servicer, the Special
Servicer, the Operating Adviser, and the Depositor in writing and the Master
Servicer shall, and the Special Servicer may, request the Seller to correct or
cure such defect in the manner and within the period or periods set forth in the
applicable Mortgage Loan Purchase Agreement and absent such correction or cure,
and, in the case of a defect which results from a failure to meet one or more
requirements of clauses (A) through (C) in the second preceding paragraph, such
defect materially and adversely affects the value of the related Mortgage Loan
or the interest of the Trustee in the related Mortgage Loan (in the good faith
judgment of the Master Servicer or the Trustee), or in any event in the case of
a defect under (D), the Master Servicer shall, and the Special Servicer may,
request the Seller, at the Seller's election, to, and the Seller shall be
required promptly upon such request, either (i) substitute for the related
Mortgage Loan, without recourse, a Qualifying Substitute Mortgage Loan or Loans,
which substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.3; or (ii) purchase such Mortgage Loan from
the Trust at the Purchase Price therefor in accordance with the Mortgage Loan
Purchase Agreement. The Purchase Price for any such Mortgage Loan shall be paid
to the Master Servicer and deposited by the Master Servicer in the Certificate
Account. Upon receipt by the Trustee of written notification of deposit of the
Purchase Price or other amount required of the Seller, signed by a Servicing
Officer of the Master Servicer (which notification shall include a statement as
to the accuracy of the calculation of the Purchase Price or other required
deposit), the Trustee shall release the related Trustee Mortgage File to the
Seller and the Trustee and the Depositor shall execute and deliver such
instruments of transfer or assignment in the forms presented to it, in each case
without recourse, representation or warranty as shall be necessary to vest in
the Seller, or its designee, title (to the extent that such title was
transferred to the Depositor or the Trustee) to any Mortgage Loan released
pursuant hereto, including title to any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policy with respect thereto.
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLER'S REPURCHASE OF MORTGAGE LOANS FOR
DOCUMENT DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgage
Properties as set forth in the Mortgage Loan Purchase Agreement, and in either
case such defect (a "Document Defect") or breach (a "Breach") materially and
adversely affects the interests of the holders of the Certificates, such party
shall give prompt written notice to the other parties hereto and to each Rating
Agency. Promptly (but in any event within three (3) Business Days) upon becoming
aware of any such Document Defect or Breach, the Master Servicer shall, and the
Special Servicer may, request that the Seller, not later than 85 days from the
Seller's receipt of the notice of such Document Defect or Breach, cure such
Document Defect or Breach, as the case may be, in all material respects;
provided, however, that if such Document Defect or Breach, as the case may be,
cannot be corrected or cured in all material respects within such 85-day period,
and such Document Defect or Breach would not cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), but the Seller is
diligently attempting to effect such correction or cure, as certified by the
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for 90 days.
If any such Document Defect or Breach cannot be corrected or cured
in all material respects within the above cure periods, the Seller will be
obligated, not later than the last day of such permitted cure period, to (i)
repurchase the affected Mortgage Loan from the Trust at the applicable Purchase
Price in accordance with the Mortgage Loan Purchase Agreement, or (ii) if within
the three-month period commencing on the Closing Date (or within the two-year
period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulations Section 1.860G-2(f)), at the Seller's option,
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Document Defect or Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code), then notwithstanding the previous
sentence, the repurchase must occur within 85 days from the date the Seller was
notified of the defect and substitution must occur within the sooner of (i) 85
days from the date the Seller was notified of the defect or (ii) two years from
the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall cause the Seller to deliver to the Trustee for such Qualifying
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage, and such other documents and agreements as are required
by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1. No
substitution may be made in any calendar month after the Determination Date for
such month. Monthly payments due with respect to Qualifying Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust and will be
retained by Master Servicer and remitted by the Master Servicer to the Seller on
the next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
the related Deleted Mortgage Loan for such month and thereafter the Seller shall
be entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee and the Special Servicer. Upon
such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects. Upon receipt of the
Trustee Mortgage File pertaining to any Qualifying Substitute Mortgage Loans,
the Trustee shall release the Trustee Mortgage File relating to such Deleted
Mortgage Loan to the Seller, and the Trustee (and the Depositor, if necessary)
shall execute and deliver such instruments of transfer or assignment in the form
presented to it, in each case without recourse, representation or warranty, as
shall be necessary to vest title (to the extent that such title was transferred
to the Trustee or the Depositor) in the Seller or its designee to any Deleted
Mortgage Loan (including any property acquired in respect thereof or any
insurance policy proceeds relating thereto) substituted for pursuant to this
Section 2.3.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer will determine the amount (if any) by which the aggregate principal
balance of all such Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate principal balance of all such Deleted
Mortgage Loans (in each case after application of scheduled principal portion of
the monthly payments received in the month of substitution). The Depositor shall
cause the Seller to deposit the amount of such shortage into the Certificate
Account in the month of substitution, without any reimbursement thereof. In
addition, the Depositor shall cause the Seller to deposit into the Certificate
Account, together with such shortage, if any, an amount equal to interest on the
Deleted Mortgage Loans at a rate equal to the sum of the applicable Mortgage
Rate from the Due Date as to which interest was last paid up to the Due Date
next succeeding such substitution together with the amount of unreimbursed
Servicing Advances, amounts required to be paid to the Special Servicer but
remaining unpaid or unreimbursed, and interest on unreimbursed Advances with
respect to such Deleted Mortgage Loans at the Advance Rate. The Depositor shall
cause the Seller, in the case of the Mortgage Loans, to give notice in writing
(accompanied by an Officer's Certificate as to the calculation of such shortage)
to the Trustee and the Master Servicer of such event which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer
and the Special Servicer shall each tender to the Seller, upon delivery to each
of them of a receipt executed by the Seller, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the Seller or its designee in
the same manner, and pursuant to appropriate forms of assignment, substantially
similar to the manner and forms pursuant to which documents were previously
assigned to the Trustee, but in any event, without recourse, representation or
warranty; provided that such tender by the Trustee shall be conditioned upon its
receipt from the Master Servicer of a Request for Release. The Master Servicer
shall, and is hereby authorized and empowered by the Trustee to, prepare,
execute and deliver in its own name, on behalf of the Certificateholders and the
Trustee or any of them, the endorsements and assignments contemplated by this
Section 2.3, and the Trustee shall execute and deliver any powers of attorney
necessary to permit the Master Servicer to do so. The Master Servicer shall, and
is also hereby authorized and empowered by the Trustee to, reconvey to the
Seller any deposits then held in an Escrow Account relating to the Mortgage Loan
being repurchased or substituted for. The Master Servicer shall indemnify the
Trustee for all costs, liabilities and expenses (including attorneys' fees)
incurred by the Trustee in connection with any negligent or intentional misuse
of any such powers of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust) and the Fiscal Agent as of the
Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the execution
and delivery of this Agreement, the Depositor does hereby transfer, assign, set
over, deposit with and otherwise convey to the Trustee, without recourse, in
trust, all the right, title and interest of the Depositor in and to the REMIC I
Regular Interests in exchange for the REMIC II Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES. The Certificates shall be in
substantially the forms set forth in Exhibits A-1 through A-20 hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement or as may in the reasonable judgment of
the Trustee or the Depositor be necessary, appropriate or convenient to comply,
or facilitate compliance, with applicable laws, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
(a) The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates will be issuable in denominations of
$25,000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class X, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L and Class M Certificates will be issuable
in denominations of $100,000 initial Certificate Balance or initial Notional
Amount (as applicable) or in any whole dollar denomination in excess thereof.
The Class R-I and Class R-II Certificates will be issued in minimum Percentage
Interests of 10% and integral multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be authenticated by
the Authenticating Agent upon the order of the Depositor. 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
substantially in the form provided for herein, executed by an authorized officer
of the Authenticating Agent by manual signature, and such certification 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. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates to the Authenticating Agent for
authentication and the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise. In the event that
additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or
cause to be delivered, at the Depositor's expense, any such additional
Certificates. With respect to each Certificate, on the Closing Date, the
Authenticating Agent upon the order of the Depositor shall authenticate
Book-Entry Certificates that are issued to a Clearing Agency or its nominee as
provided in Section 3.7 against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Trustee shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Trustee or the Certificateholders, and a new
successor may be appointed, in accordance with the procedures and requirements
set forth in Sections 7.6 and 7.7 hereof with respect to the resignation,
discharge or removal of the Trustee and the appointment of a successor Trustee.
The Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Record Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such). If a transfer of any interest in a Non-Registered
Certificate that constitutes a Book-Entry Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of any interest in such
Non-Registered Certificate by the Depositor or any of its Affiliates), then the
Certificate Owner desiring to effect such transfer shall be required to obtain
either (i) a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit D-3A hereto or as Exhibit D-3B
hereto, or (ii) an Opinion of Counsel to the effect that such transfer may be
made without registration under the Securities Act. None of the Depositor, the
Fiscal Agent, the Trustee, the Master Servicer, the Special Servicer or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Certificate. Any Certificateholder or Certificate Owner desiring
to effect a transfer of Non-Registered Certificates or interests therein shall,
and does hereby agree to, indemnify the Depositor, each Underwriter, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate or any
interest therein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or Section 4975 of
the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Subordinate Certificate that constitutes a Book-Entry Certificate, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a Subordinate
or Residual Certificate, the prospective Transferee provides the Certificate
Registrar with a certification of facts and an Opinion of Counsel which
establish to the satisfaction of the Certificate Registrar that such transfer
will not constitute or result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code or subject the Depositor, the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer or the
Certificate Registrar to any obligation in addition to those undertaken in this
Agreement. Each Person who acquires any Subordinate or Residual Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinate Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan; or (ii) that
the purchase and holding of such Certificate or interest therein by such person
qualifies for the exemptive relief available under Sections I and III of PTCE,
or another exemption from the prohibited transaction rules under ERISA by the
U.S. Department of Labor.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to
remain a Permitted Transferee and that it has reviewed the provisions
of this Section 3.3(e) and agrees to be bound by them. Furthermore, no
transfer of any Ownership Interest in a Noneconomic Residual Interest
shall be made unless the Transferor conducts, at the time of the
transfer, a reasonable investigation of the financial condition of the
proposed Transferee and, as a result of the investigation, the
Transferor determines that the proposed Transferee had historically
paid its debts as they came due and found no significant evidence that
the proposed Transferee will not continue to pay its debts as they
come due in the future.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee shall
be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as Exhibit E-2
stating that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(E) [Reserved]
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee, then the last preceding Holder of
such Residual Certificate that was in compliance with the provisions
of this Section 3.3(e) shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof retroactive to
the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of
a Residual Certificate that is in fact not permitted by this Section
3.3(e) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee, and to the extent that the
retroactive restoration of the rights and obligations of the prior
Holder of such Residual Certificate as described in clause (F) above
shall be invalid, illegal or unenforceable, then the Certificate
Registrar shall have the right, without notice to the Holder or any
prior Holder of such Residual Certificate, but not the obligation, to
sell such Residual Certificate to a purchaser selected by the Trustee
on such terms as the Trustee may choose. Such noncomplying Holder
shall promptly endorse and deliver such Residual Certificate in
accordance with the instructions of the Certificate Registrar. Such
purchaser may be the Certificate Registrar itself or any Affiliate of
the Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Certificate
Registrar or its Affiliates), expenses and taxes due, if any, will be
remitted by the Certificate Registrar to such noncomplying Holder. The
terms and conditions of any sale under this clause (G) shall be
determined in the sole discretion of the Certificate Registrar, and
the Certificate Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
The Master Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, to the Internal
Revenue Service and those Persons specified by the REMIC
Provisions, all information necessary to compute any tax imposed
as a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate. The Person holding such
Ownership Interest shall be responsible for the reasonable
compensation of the Master Servicer and the Trustee for providing such
information.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Certificate Registrar, the Master Servicer, the Operating Adviser and the
Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause either of REMIC I or REMIC II to (x) cease
to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a tax caused by the Transfer of a Residual
Certificate to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent or the Certificate Registrar shall have any liability to the
Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide notice to the Master
Servicer, the Special Servicer and the Depositor of each transfer of a
Certificate and, upon written request, provide each such Person with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A)
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 (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
issuance of any new Certificate under this Section 3.4, 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
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser and any agent of
the Master Servicer, the Special Servicer, the Fiscal Agent, the Trustee or the
Operating Adviser may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser nor any agent of
the Master Servicer, the Special Servicer, the Fiscal Agent, the Trustee or the
Operating Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all the
Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Trustee, the Operating Adviser or the Depositor (A) request in
writing from the Certificate Registrar a list of the names and addresses of
Certificateholders and (B) in the case of a request by Certificateholders, state
that such Certificateholders desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Certificates,
then the Certificate Registrar shall, within ten Business Days after the receipt
of such request, afford such Certificateholders, the Master Servicer, the
Special Servicer, the Depositor, the Trustee or the Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information requested by
such Person shall be borne by the party requesting such information and shall
not be borne by the Certificate Registrar or the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 DEFINITIVE CERTIFICATES AND BOOK-ENTRY CERTIFICATES.
(a) The Certificates (other than the Class R-I and R-II Certificates),
upon original issuance, each shall be issued in the form of one or more
Certificates representing the Book-Entry Certificates, to be delivered to the
Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor
and the Class R-I and R-II Certificates, upon original issuance, each shall be
issued in the form of Definitive Certificates. The Certificates shall initially
be registered on the Certificate Register in the name of Cede & Co., the nominee
of the Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate Registrar and
the Trustee may deal with the Clearing Agency for all purposes (including the
making of distributions on the Certificates) as the authorized representative of
the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this Section 3.7
shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be
exercised only through the Clearing Agency and the applicable Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Participants. Pursuant to
the Depository Agreement, unless and until Certificates are issued pursuant to
Section 3.9, the initial Clearing Agency will make book-entry transfers among
the Participants and receive and transmit distributions of principal and
interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Certificates evidenced by any Rule
144A-IAI Global Certificate shall be subject to certain restrictions on transfer
as set forth in Section 3.3 hereof and shall bear legend(s) regarding such
restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A-IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule
144A-IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Placement Agent. Ownership of beneficial interests in a Global Certificate shall
be limited to Customers or Persons who hold interests directly or indirectly
through Customers. Ownership of beneficial interests in the Global Certificates
shall be shown on, and the transfer of that ownership shall be effected only
through, records maintained by the Depository or its nominee (with respect to
interests of Customers) and the records of Customers (with respect to interests
of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee and the Certificate Registrar shall not be affected
by any notice to the contrary. Except under the circumstance described in
Section 3.9, owners of beneficial interests in a Global Certificate will not be
entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A-IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule
144A-IAI Global Certificate as described herein; provided, however, that no
Exchange Certification shall be required if any such exchange occurs after the
Release Date. Any holder of an interest in the Rule 144A-IAI Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
the Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Depository
notifies the Depositor and the Certificate Registrar in writing that the
Depository is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Depository through the Participants in writing (and the Depository so
advises the Depositor, the Certificate Registrar and the Master Servicer in
writing) that the continuation in global form of the Certificates being
evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Depository and request the Depository to
notify all Certificate Owners, through the applicable Participants, of the
occurrence of the event and of the availability of Definitive Certificates to
such Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Global Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, the Definitive Certificates. None of the Depositor,
the Trustee, the Certificate Registrar or the Fiscal Agent shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, all references herein to obligations imposed upon or to
be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee
shall recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Trustee directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made by the Master
Servicer and, if the Master Servicer does not make such Advances, by the
Trustee, and if the Trustee does not make such Advances, by the Fiscal Agent
except to the extent that the Master Servicer, the Trustee or the Fiscal Agent,
as applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer shall
notify the Trustee if the P&I Advance Amount for such Distribution Date is
greater than zero, and the Master Servicer shall make a P&I Advance of such
amount no later than the Master Servicer Remittance Date. For purposes of the
notice described in the foregoing sentence, with respect to any Advance Report
Date, the "P&I Advance Amount" for each Mortgage Loan shall be determined
without regard to any collections that might be received after the related
Determination Date. Notwithstanding the foregoing, for the Post Determination
Date Mortgage Loans, the Master Servicer hereby agrees that, if the applicable
Scheduled Payment has not been received on or before the Master Servicer
Remittance Date (regardless of the Due Date or expiration of grace periods for
such Scheduled Payment), the Master Servicer shall make the applicable P&I
Advance in respect of such Scheduled Payment; provided, however, the Master
Servicer's right to earn interest on such P&I Advance is limited as provided in
Section 4.5 hereof. It is understood that the obligation of the Master Servicer
to make such P&I Advances is mandatory and shall apply through any court
appointed stay period or similar payment delay resulting from any insolvency of
the Mortgagor or related bankruptcy, notwithstanding any other provision of this
Agreement. Notwithstanding the foregoing, the Master Servicer shall not be
required to make such P&I Advance, if the Master Servicer determines, in
accordance with Section 4.4 below, that any such P&I Advance would be a
Nonrecoverable Advance. Such determination shall be conclusive and binding on
the Trustee, the Fiscal Agent and the Certificateholders. The Special Servicer
shall not be required to make P&I Advances under this Agreement. If the Master
Servicer fails to make a P&I Advance, it shall promptly notify the Trustee of
such failure.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the Master Servicer
Remittance Date either (A) deposit in the Certificate Account an amount equal to
the P&I Advance Amount or (B) utilize funds in the Certificate Account being
held for future distributions or withdrawals to make such Advance. Any funds
being held in the Certificate Account for future distribution or withdrawal and
so used shall be replaced by the Master Servicer from its own funds by deposit
in the Certificate Account on or before any future Master Servicer Remittance
Date to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Trustee or other Persons
required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if the
Master Servicer does not, the Trustee (if the Trustee has knowledge that such
Advance is required to be made) and if the Trustee does not, the Fiscal Agent
(if the Fiscal Agent has knowledge that such Advance is required to be made)
shall make Servicing Advances to the extent provided in this Agreement, except
to the extent that the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance. Such determination by the Master
Servicer shall be conclusive and binding on the Trustee, the Fiscal Agent and
the Certificateholders. The Special Servicer shall not be required to make
Servicing Advances under this Agreement. If the Master Servicer fails to make a
Servicing Advance, it shall promptly notify the Trustee in writing of such
failure.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a P&I Advance
by the Master Servicer Remittance Date (other than a P&I Advance that the Master
Servicer determines is a Nonrecoverable Advance), the Trustee shall make such
P&I Advance not later than 10:00 a.m. (New York City time) on the Distribution
Date that such advance has not been made by the Master Servicer on the Master
Servicer Remittance Date unless the Trustee determines that such P&I Advance, if
made, would be a Nonrecoverable Advance. To the extent that the Trustee fails to
make a P&I Advance required to be made by the Trustee hereunder on the
Distribution Date (other than a P&I Advance that the Master Servicer or the
Trustee determines is a Nonrecoverable Advance), the Fiscal Agent will advance
such P&I Advance unless the Fiscal Agent determines that any such P&I Advance,
if made, would be a Nonrecoverable Advance. To the extent that the Fiscal Agent
is required hereunder to make P&I Advances, it shall deposit the amount thereof
in the Distribution Account by 1:00 p.m. (New York City time) on each such
Distribution Date.
(b) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof, the
Trustee shall make such Servicing Advance promptly in accordance with Section
4.2, but in any event, not later than five Business Days after notice thereof,
unless the Trustee determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice pursuant to subsection (b) above, that such
Servicing Advance has not been made by the Master Servicer (other than a
Servicing Advance that the Master Servicer or the Trustee has determined to be a
Nonrecoverable Advance), the Fiscal Agent will advance such Servicing Advance,
unless the Fiscal Agent determines that such Servicing Advance, if made, would
be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be
made by it hereunder shall not constitute a default by the initial Trustee
hereunder if the initial Fiscal Agent makes such Advance at or before the time
when the Trustee was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY. If the Master Servicer
determines at any time, in its sole discretion, exercised in good faith, that
any Advance previously made or proposed Advance, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate delivered to the Trustee, the Special Servicer, the Operating
Adviser and the Rating Agencies by the Business Day prior to the Distribution
Date. Such Officer's Certificate shall set forth the reasons for such
determination of nonrecoverability, together with, to the extent such
information, report or document is in the Master Servicer's possession, any
related financial information such as related income and expense statements,
rent rolls, occupancy status, property inspections and any Appraisals performed
within the last 12 months on the Mortgaged Property, and, if such reports are
used by the Master Servicer to determine that any P&I Advance or Servicing
Advance, as applicable, would be a Nonrecoverable Advance, any engineers'
reports, environmental surveys, internal final valuations or other information
relevant thereto which support such determination. If the Trustee or the Fiscal
Agent, as applicable, determines at any time that any portion of an Advance
previously made or a portion of a proposed Advance that the Trustee or the
Fiscal Agent, as applicable, is required to make pursuant to this Agreement, if
made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate of a Responsible Officer of the Trustee or
the Fiscal Agent, as applicable, delivered to the Depositor, the Master
Servicer, the Special Servicer and the Operating Adviser similar to the
Officer's Certificate of the Master Servicer described in the prior sentence.
The Trustee and the Fiscal Agent shall not be required to make an Advance that
the Master Servicer has previously determined to be a Nonrecoverable Advance.
Notwithstanding any other provision of this Agreement, none of the Master
Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor shall it,
make any Advance or make any payment that is designated in this Agreement to be
an Advance, if it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance. The Master Servicer's determination in accordance with
the above provisions shall be conclusive and binding on the Trustee, the Fiscal
Agent and the Certificateholders.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from the Master
Servicer's, the Trustee's or the Fiscal Agent's own funds shall accrue interest
on a daily basis, at a per annum rate equal to the Advance Rate, from and
including the date such Advance was made to but not including the date on which
such Advance has been reimbursed.
Notwithstanding the foregoing, with respect to P&I Advances made on the Post
Determination Date Mortgage Loans with respect to which the Scheduled Payment
was not received by the Master Servicer Remittance Date, interest on any P&I
Advance shall accrue from and including the day succeeding the later of the
applicable Due Date or, if applicable, the date on which any applicable grace
periods expire. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan or REO
Property and treated as collections of principal or interest shall be applied
first to reimburse the earliest P&I Advance and then each succeeding P&I Advance
to the extent not inconsistent with Section 4.6. The Master Servicer and the
Special Servicer shall use efforts consistent with the Servicing Standard to
collect (but shall have no further obligation to collect), with respect to the
Mortgage Loans that are not Specially Serviced Mortgage Loans and Specially
Serviced Mortgage Loans, respectively, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest. The Master Servicer
shall be entitled to retain Late Fees paid by any Mortgagor with respect to any
Mortgage Loan (other than a Specially Serviced Mortgage Loan, as to which the
Special Servicer shall retain Late Fees) as additional servicing compensation to
the extent such Late Fees exceed Advance Interest. The Special Servicer, with
respect to any Specially Serviced Mortgage Loan, shall (i) pay from any related
Late Fees outstanding and unpaid Advance Interest to the Master Servicer, the
Trustee or the Fiscal Agent, as applicable, and (ii) retain any remaining
portion of such Late Fees as additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or Specially
Serviced Mortgage Loan or REO Property (including Advances later determined to
be Nonrecoverable Advances) shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances pursuant to Section 5.2 collected in any Collection
Period with respect to Mortgage Loans or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on Mortgage Loans,
Specially Serviced Mortgage Loans or REO Property, the Available Advance
Reimbursement Amount with respect to any Determination Date shall be applied to
reimburse (i) the Fiscal Agent for any Advances outstanding to the Fiscal Agent
with respect to any of such Mortgage Loans or Specially Serviced Mortgage Loans
or REO Property, plus any Advance Interest owed to the Fiscal Agent with respect
to such Advances and then (ii) the Trustee for any Advances outstanding to the
Trustee with respect to any of such Mortgage Loans or Specially Serviced
Mortgage Loans or REO Property, plus any Advance Interest owed to the Trustee
with respect to such Advances and then (iii) the Master Servicer for any
Advances outstanding to the Master Servicer with respect to any of such Mortgage
Loans, Specially Serviced Mortgage Loans or REO Property, plus any Advance
Interest owed to the Master Servicer with respect to such Advances. To the
extent that any Advance Interest payable to the Master Servicer, the Trustee or
the Fiscal Agent with respect to a Specially Serviced Mortgage Loan or REO
Property cannot be recovered from the related Mortgagor, the amount of such
Advance Interest shall be treated as a Servicing Advance and shall be payable to
the Fiscal Agent, the Trustee or the Master Servicer, as the case may be, from
amounts on deposit in the Certificate Account or the Distribution Account
pursuant to Section 5.2(a) or Section 5.3(b)(ii). The Master Servicer's, the
Fiscal Agent's and the Trustee's right of reimbursement under this Agreement for
Advances shall be prior to the rights of the Certificateholders to receive any
amounts recovered with respect to such Mortgage Loans or REO Properties.
(c) Advance Interest will be paid to the Fiscal Agent, the Trustee
and/or the Master Servicer (in accordance with the priorities specified in the
preceding paragraph) first from Late Fees and default interest collected with
respect to the Mortgage Loans as to which the related Advances were made, and
then from Excess Liquidation Proceeds.
(d) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Master Servicer shall reimburse
the Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to Section 4.4. With
respect to each Collection Period, the Special Servicer shall deliver such
invoice and report to the Master Servicer by the following Determination Date.
All such amounts reimbursed by the Master Servicer shall be a Servicing Advance.
In the event that the Master Servicer determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance and the Master Servicer does not make
such payment, the Special Servicer shall notify the Master Servicer and Trustee
in writing of such nonpayment and the amount payable to the Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The Master Servicer and the Trustee shall have no obligation to verify
the amount payable to the Special Servicer pursuant to this Section 4.6(e) and
circumstances surrounding the notice delivered by the Special Servicer pursuant
to this Section 4.6(e).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent
Termination Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee when due
any required Advances; or
(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or relating
to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(v) The long term unsecured debt of the Fiscal Agent is rated below
"Aa3" by Moody's and "AA" (without regard to any pluses or minuses) by S&P (if
the long term unsecured debt of the Trustee is not rated a minimum of "AA" by
S&P and "Aa3" by Moody's) or such other rating as to which each Rating Agency
delivers Rating Agency Confirmation; or
(vi) reserved; or
(vii) With respect to the initial Fiscal Agent, LaSalle Bank National
Association resigns or is removed pursuant to Section 7.6 hereof.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given to
the Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of
the Fiscal Agent under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate and a successor Fiscal Agent, if necessary,
shall be appointed by the Trustee, with the consent of the Depositor; provided
that the successor Fiscal Agent meets the eligibility requirements set forth in
Section 7.5. The Fiscal Agent agrees to cooperate with the Trustee in effecting
the termination of the Fiscal Agent's responsibilities and rights hereunder as
Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal Agent,
the terminated Fiscal Agent shall continue to be entitled to reimbursement to
the extent provided in Section 4.6 but only to the extent such reimbursement
relates to the period up to and including the date on which the Fiscal Agent's
termination is effective. The Fiscal Agent shall be reimbursed for all amounts
owed to it hereunder on or prior to the effective date of its termination from
amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person into
which the Fiscal Agent may be merged or consolidated, or any Person resulting
from any merger, conversion, other change in form or consolidation to which the
Fiscal Agent shall be a party, or any Person succeeding to the business of the
Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, 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 Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the successor or surviving entity meets the
eligibility requirements set forth in Section 7.5, and (v) the Fiscal Agent
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel
acceptable to the Trustee (which opinion shall be at the expense of the Fiscal
Agent) stating that all conditions precedent to such action under this Section
4.9 have been completed and such action is permitted by and complies with the
terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND OTHERS.
Neither the Fiscal Agent nor any of the directors, officers, employees, agents
or Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor or the Trustee for any action taken or for
refraining from the taking of any action in good faith, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Fiscal Agent or any such
Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or agent of
the Fiscal Agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Fiscal Agent shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its obligations
under this Agreement. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the Fiscal Agent shall be entitled
to be reimbursed therefor as Servicing Advances as provided by this Agreement.
The provisions of this Section 4.10 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and
each of its directors, officers, employees, agents and Controlling Persons shall
be indemnified by the Trust and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement other than any loss, liability or
expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Persons may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum, Prospectus Supplement or Prospectus or arises out
of, or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made, not misleading
and shall reimburse the Fiscal Agent, its directors, officers, employees, agents
or Controlling Persons for any legal and other expenses reasonably incurred by
the Fiscal Agent or any such director, officer, employee, agent or Controlling
Persons in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action. The Fiscal Agent shall immediately
notify the Depositor, the Seller, the Master Servicer and the Trustee if a claim
is made by a third party with respect to this Section 4.11 entitling the Fiscal
Agent, its directors, officers, employees, agents or Controlling Persons to
indemnification hereunder, whereupon the Depositor shall assume the defense of
any such claim (with counsel reasonably satisfactory to the Fiscal Agent) and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or them in respect of such claim. Any failure to so notify the Depositor
shall not affect any rights the Fiscal Agent, its directors, officers,
employees, agents or Controlling Persons may have to indemnification under this
Section 4.11, unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Fiscal
Agent.
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be maintained,
a separate account or accounts, which accounts must be Eligible Accounts, in the
name of "Wells Fargo Bank, National Association, as Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN" (the "Certificate Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account the Master Servicer shall give to the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account to hold such account in the name of
the Master Servicer as provided in Section 5.1(a), subject to the Master
Servicer's (or its Sub-Servicer's) right to direct payments and investments and
its rights of withdrawal under this Agreement.
(c) The Master Servicer shall deposit, or cause to be deposited, into
the Certificate Account on the Business Day following receipt (or, in the case
of an inadvertent failure to make such deposit on the Business Day following
receipt, within 3 Business Days of discovery of such failure and in the case of
unscheduled remittances of principal or interest, on the Business Day following
identification of the proper application of such amounts), the following amounts
received by it (including amounts remitted to the Master Servicer by the Special
Servicer from an REO Account pursuant to Section 9.14 or as Compensating
Interest pursuant to Section 9.11), other than in respect of interest and
principal on the Mortgage Loans due on or before the Cut-Off Date which shall be
remitted to the Depositor (provided that the Master Servicer (I) may retain
amounts otherwise payable to the Master Servicer as provided in Section 5.2(a)
rather than deposit them into the Certificate Account and (II) shall, rather
than deposit them in the Certificate Account, directly remit to the Primary
Servicer the Primary Servicing Fees payable as provided in Section
5.2(a)(iv)(unless already retained by the Primary Servicer):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments,
and any Late Collections in respect thereof on the Mortgage Loans;
(B) Interest: subject to subsection (d) hereof, all payments on
account of interest, including Compensating Interest paid by the
Special Servicer pursuant to Section 9.11, (minus any portion of any
such payment that is allocable to the period prior to the Cut-Off Date
which shall be remitted to the Depositor);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(E) Condemnation Proceeds: all condemnation proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held in
the Certificate Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Prepayment Premiums,
required to deposited in the Certificate Account pursuant to this
Agreement, including Purchase Proceeds of any Mortgage Loans
repurchased by Seller or substitution shortfall amounts (as described
in the fifth paragraph of Section 2.3(a)) paid by Seller in connection
with the substitution of any Qualifying Substitute Mortgage Loans.
Remittances from any REO Account to the Master Servicer for deposit
in the Certificate Account shall be made by the Special Servicer no later than
the Special Servicer Remittance Date.
(d) With respect to each of the Mortgage Loans identified on the
Mortgage Loan Schedule by loan numbers 4, 19, 25, 43, 60, 64 and 68, as to which
the related terms provide for a grace period in connection with the Balloon
Payment and such grace period does not expire by the end of the Collection
Period in the month in which the Balloon Payment is due, the Master Servicer
shall, unless the Balloon Payment is received by the second Business Day before
the Distribution Date occurring in the month in which such Balloon Payment is
due, advance by deposit to the Collection Account on the Master Servicer
Remittance Date an amount equal to the "Assumed Scheduled Payment". Such amount
shall be deemed to be a "P&I Advance" hereunder but Advance Interest shall not
commence accruing thereon until the end of the applicable grace period. In
addition, in the case of the Mortgage Loan identified on the Mortgage Loan
Schedule by loan number 37, as to which the grace period applicable to the
Balloon Payment does not expire by the second Business Day before the
Distribution Date occurring in the month in which such Balloon Payment is due,
the Master Servicer on the Master Servicer Remittance Date for the next
succeeding month shall, unless the Balloon Payment is received by the second
Business Day before the Distribution Date occurring in the month in which such
Balloon Payment is due, remit to the Trustee for deposit into the Distribution
Account (solely from amounts paid by the Primary Servicer pursuant to the
Primary Servicing Agreement) an amount equal to the lesser of (i) the aggregate
of all Primary Servicing Fees otherwise payable in respect of such month and
(ii) the amount of Prepayment Interest Shortfalls that would arise and be
attributable to Loan 37. The Master Servicer shall not be required to make a
Compensating Interest Payment in respect of such Balloon Payment. As to the
Mortgage Loans referred to in the foregoing provisions of this paragraph, if the
related Balloon Payment is received after the end of the Collection Period
ending in the month in which the Balloon Payment is due but by the second
Business Day before the Distribution Date occurring in that month, then the
Master Servicer shall provide to the Trustee not later than the second Business
Day before the Distribution Date an updated Master Servicer Remittance Report
reflecting such collection and receipt.
(e) Funds in the Certificate Account may be invested and, if invested,
shall be invested by, and at the risk of, the Master Servicer in Eligible
Investments selected by the Master Servicer which shall mature, unless payable
on demand, not later than the Business Day immediately preceding the next Master
Servicer Remittance Date, and any such Eligible Investment shall not be sold or
disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "LaSalle Bank National Association, as
Trustee for the Holders of the Morgan Stanley Dean Witter Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-PRIN." None of the
Depositor, the Mortgagors or the Trustee shall be liable for any loss incurred
on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account out of its own funds immediately as realized. If the Master
Servicer deposits in any Certificate Account, any amount not required to be
deposited therein, it may at any time withdraw such amount from the Certificate
Account any provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Trustee may take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings; provided, however, that if the Master Servicer shall
have deposited in the Certificate Account an amount equal to all amounts due
under any such Eligible Investment (net of anticipated income or earnings
thereon that would have been payable to the Master Servicer as additional
servicing compensation) the Master Servicer shall have the sole right to enforce
such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans that it
services in accordance with the requirements set forth in Section 8.3(e).
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT.
(a) The Master Servicer shall, from time to time, make withdrawals
from the Certificate Account and remit them by wire transfer prior to 2:00 p.m.,
New York City time, on the related Master Servicer Remittance Date in
immediately available funds to the account specified in this Section or
otherwise (w) to such account as it shall determine from time to time of amounts
payable to the Master Servicer from the Certificate Account pursuant to clauses
(i), (ii), (iii), (iv), (vi), (viii) and (ix) below; (x) to the account
specified in writing by the Trustee from time to time of amounts payable to the
Trustee from the Certificate Account pursuant to clauses (ii), (iii), (v), (vi),
(xi), (xii) and (xiii) below; and (y) to the Special Servicer from time to time
of amounts payable to the Special Servicer from such Certificate Account
pursuant to clauses (i), (iv), (vi), and (vii) below of the following amounts,
from the amounts specified for the following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late Fees (in
excess of Advance Interest) relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans, 50% of any Modification Fees relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans as provided in Section 8.18, 50%
of any assumption fees payable under Section 8.7(a), 100% of any extension fees
payable under Section 8.10 or other fees payable to the Master Servicer
hereunder and (B) directly to the Special Servicer, 50% of any assumption fees
as provided in Section 8.7(a), 50% of any Modification Fees, 100% of all
assumption fees payable under Section 8.7(b) or relating to Specially Serviced
Mortgage Loans and Late Fees (in excess of Advance Interest which the Master
Servicer shall retain) and other fees collected on Specially Serviced Mortgage
Loans, in each case to the extent provided for herein from funds paid by the
applicable Mortgagor;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): to apply, pursuant to Section 4.6, (x) prior to a
Final Recovery Determination or determination in accordance with Section 4.4
that any Advance is a Nonrecoverable Advance, payments made by the Mortgagor of
the amounts to which a Servicing Advance relates or from REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds or (y) after a Final Recovery
Determination or determination that any Advance is a Nonrecoverable Advance, any
funds on deposit in the Certificate Account (regardless of whether such amount
was recovered from the applicable Mortgage Loan or REO Property), to reimburse
the Fiscal Agent, the Trustee and itself, in that order, as provided in, and
subject to, Article IV hereof, for any Servicing Advances (and Advance Interest
thereon not paid in accordance with Section 4.6(c)) made with respect to a
Mortgage Loan or REO Property and not previously reimbursed;
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): to apply pursuant to Section 4.6, (x) prior to a Final
Recovery Determination or determination that any Advance is a Nonrecoverable
Advance, payments made by the Mortgagor of the amounts to which a P&I Advance
relates, or REO Income from the related REO Property or from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds or (y)
after a Final Recovery Determination or determination in accordance with Section
4.4 that any Advance is a Nonrecoverable Advance, for any Mortgage Loan, any
funds on deposit in the Certificate Account (regardless of whether such amount
was recovered from the applicable Mortgage Loan or REO Property), to reimburse
the Fiscal Agent, the Trustee and itself, in that order, in accordance with
Article IV hereof, for any P&I Advances (and Advance Interest thereon not paid
in accordance with Section 4.6(c)) previously made by it with respect to the
related Mortgage Loan or REO Property and not previously reimbursed;
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, to pay to the Special Servicer the Special
Servicing Fee, in each case, subject to reduction for any Compensating Interest
and to pay to the Primary Servicer the Primary Servicing Fees (subject to
reduction for any payment made pursuant to Section 5.1(d));
(v) Trustee Fee: to pay to the Distribution Account for withdrawal by
the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time set forth
herein or in the definition thereof), the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate Account, the
amount certified by the Special Servicer equal to the Liquidation Fee, to the
extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized on
the investment of funds deposited in such Certificate Account relating to the
Trust;
(ix) Prepayment Interest Excesses: to pay to the Master Servicer the
amount of the aggregate Prepayment Interest Excesses relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans (to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage Loans); and to pay to
the Special Servicer the amount of the aggregate Prepayment Interest Excesses
relating to Specially Serviced Mortgage Loans which have received voluntary
Principal Prepayments (not from Liquidation Proceeds or from modifications to
Specially Serviced Mortgage Loans), to the extent not offset by Prepayment
Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master Servicer
Remittance Date to the Distribution Account of the remaining amounts in the
Certificate Account other than amounts held for payment in future periods or
pursuant to clauses (xii) and (xiii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Account pursuant to Section 8.29.
The Master Servicer shall keep and maintain a separate accounting for
each Mortgage Loan for the purpose of justifying any withdrawal from the
Certificate Account.
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the Certificate
Account and shall be distributed on the Master Servicer Remittance Date or Dates
to which such succeeding Collection Period or Periods relate; provided, however,
as to Post Determination Date Mortgage Loans, sums received by the Master
Servicer with respect to any Due Date but on or after the related Master
Servicer Remittance Date, shall be applied by the Master Servicer to reimburse
P&I Advances made by the Master Servicer with respect to such Post Determination
Date Mortgage Loans on such Master Servicer Remittance Date.
(c) On each Master Servicer Remittance Date in the month in which a
Maturity Date occurs on an Advance Payment Mortgage Loan, the Primary Servicer
shall remit to the Master Servicer an amount equal to that portion of the
interest payable to the Certificates that will be due on the Distribution Date
relating to the Maturity Date for any Advance Payment Mortgage Loan and such
amounts shall be deposited into the Distribution Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Trustee, shall establish (with respect to clause (i), on or
prior to the Closing Date, and with respect to clause (ii), on or prior to the
date the Trustee determines is necessary) and maintain in its name, (i) an
account (the "Distribution Account"), to be held in trust for the benefit of the
Holders until disbursed pursuant to the terms of this Agreement, titled:
"LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN, Distribution Account" and (ii) an
account (the "Reserve Account") to be held in trust for the benefit of the
holders of interests in the Trust until disbursed pursuant to the terms of this
Agreement, titled: "LaSalle Bank National Association, as Trustee, in trust for
the benefit of the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN, Reserve Account." The Distribution
Account and the Reserve Account shall be Eligible Accounts. Funds in the
Distribution Account and in the Reserve Account shall not be invested. The
Distribution Account and Reserve Account shall be held separate and apart from
and shall not be commingled with any other monies including, without limitation,
other monies of the Trustee held under this Agreement.
(b) The Trustee shall deposit into the Distribution Account or the
Reserve Account, as applicable, on the Business Day received all moneys remitted
by the Master Servicer pursuant to this Agreement, including P&I Advances made
by the Master Servicer, the Trustee and the Fiscal Agent; provided, however, all
Excess Liquidation Proceeds identified to the Trustee by the Master Servicer
shall be deposited into the Reserve Account. On any Master Servicer Remittance
Date, the Master Servicer shall have no duty to remit to the Distribution
Account any amounts other than amounts held in the Certificate Account and
collected during the related Collection Period as provided in clauses (v) and
(xi) of Section 5.2 and the P&I Advance Amount. The Trustee shall make
withdrawals from the Distribution Account and the Reserve Account only for the
following purposes:
(i) to withdraw amounts deposited in the Distribution Account in error
and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the Primary
Servicer, the Special Servicer and the Trustee (including the Trustee's Fee or
other expenses or other amounts permitted to be paid hereunder and not
previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.3; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
SECTION 5.4 TRUSTEE REPORTS.
(a) Based solely on (and to the extent of the information contained
in) the Master Servicer Remittance Report provided to the Trustee by the Master
Servicer (no later than the Report Date), on each Distribution Date, the Trustee
shall be required to provide or make available either electronically or by first
class mail (or such other medium as the Depositor shall reasonably request, the
incremental cost of which shall be paid in advance by the recipient thereof), to
each Certificateholder, the Operating Adviser, the Rating Agencies, the Master
Servicer, the Special Servicer, the Primary Servicer, the Placement Agent, each
Underwriter, the Depositor and anyone the Depositor, the Placement Agent or
either Underwriter reasonably designates (i) a Monthly Certificateholders Report
(substantially in the form of Exhibit M) and (ii) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period, which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in Appendix I to the Prospectus
Supplement and shall be presented in tabular format substantially similar to the
format utilized in such Appendix I which report may be included as part of the
Monthly Certificateholders Report. The Trustee shall be entitled to conclusively
rely on any such information provided to it by the Master Servicer or the
Special Servicer and shall have no obligation to verify any such information and
the Trustee may disclaim responsibility for any information distributed by the
Trustee for which it is not the original source.
Upon written request, the Trustee shall send the reports described
in the preceding paragraph to any Certificate Owner, which has provided evidence
satisfactory to the Trustee that it is a Certificate Owner, or Certificateholder
by first class mail at no cost to such Certificate Owner or Certificateholder.
In addition, the Trustee shall make the reports described in the preceding
paragraph available through its website, initially located at www.lnbabs.com
(the "Trustee's Website") and electronic bulletin board. The Trustee's
electronic bulletin board may be initially accessed by calling (714) 282-3990.
For assistance with the above-mentioned Trustee services, Certificateholders or
any party hereto may initially call (800) 246-5761. In addition, the Trustee
will also make Mortgage Loan information as presented in the following CMSA
Reports: the Loan Setup File, the Loan Periodic Update File, the Property File,
the Comparative Financial Status Report, the Operating Statement Analysis Report
and the other CMSA Reports set forth in Section 8.11(g) and the Special Servicer
Monthly Reports (including the Servicer Watch List) available each month to any
Certificateholder, any Certificate Owner, the Rating Agencies or any other
interested party via the Trustee's Website or other electronic means. The
Trustee shall not be deemed to have made any representations or warranties as to
the accuracy or completeness of such documents and will assume no responsibility
therefor. In addition, the Trustee may disclaim responsibility for any
information distributed by it of which information the Trustee is not the
original source. In connection with providing access to the Trustee's Website or
electronic bulletin board, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement; provided that
this sentence shall not in any way limit the liability the Trustee may otherwise
have in performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder that is a savings association,
bank, or insurance company, the Trustee shall provide (to the extent in its
possession) to each such Certificateholder such reports and access to
non-privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Trustee shall be entitled to be reimbursed by
such Certificateholder for the Trustee's actual expenses incurred in providing
such reports and access.
(c) Upon written request, the Trustee shall send to each Person who at
any time during the calendar year was a Certificateholder of record, a report
summarizing the items (in clauses (i), (ii) and (xi) of the definition of
Monthly Certificateholders Report) provided to Certificateholders pursuant to
this Section 5.4 on an annual basis and such other customary information as the
Trustee deems may be necessary or desirable for such Holders to prepare their
federal income tax returns.
(d) On each Distribution Date, the Trustee shall provide to the
Placement Agent, each Underwriter, the Rating Agencies, the Depositor, the
Operating Adviser, the Master Servicer, the Special Servicer, the Primary
Servicer, the Fiscal Agent, anyone the Depositor or the Placement Agent or
either Underwriter reasonably designates, and upon request to any
Certificateholder, Certificate Owner (as identified by such Certificate Owner)
or prospective Certificate Owner (as identified to the Trustee by any existing
Certificateholder or Certificate Owner), a report substantially in the form of
Exhibit Q (which shall be made available electronically as the Trustee may
determine from time to time) with the information contained therein updated to
the date of such report. Any transmittal of reports, records, documentation or
other matters by the Trustee to any Person other than the Master Servicer, the
Special Servicer, the Rating Agencies, the Operating Adviser or the Depositor
may be accompanied by a letter from the Trustee containing the following
provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public
information regarding the Trust which issued Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-PRIN from purchasing or selling such
Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You
also acknowledge and agree that such information is being
provided to you for the purpose of, and such information may be
used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
(e) The Trustee shall afford the Rating Agencies, the Depositor, the
Master Servicer, the Special Servicer, the Primary Servicer, the Fiscal Agent,
the Operating Adviser, any Certificateholder, prospective Certificate Owner or
any Person reasonably designated by the Placement Agent, or either Underwriter
upon reasonable notice and during normal business hours, reasonable access to
all relevant, non-attorney privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all other relevant matters relating
to this Agreement, and access to Responsible Officers of the Trustee. Any
transmittal of reports, records, documentation or other matters by the Trustee
to any Person other than the Master Servicer, the Special Servicer, the Rating
Agencies, the Operating Adviser or the Depositor may be accompanied by a letter
from the Trustee containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public
information regarding the Trust which issued Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-PRIN from purchasing or selling such
Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You
also acknowledge and agree that such information is being
provided to you for the purpose of, and such information may be
used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Trustee upon request; provided, however, that the Trustee shall be
permitted to require payment by the requesting party (other than the Depositor,
the Master Servicer, the Special Servicer, the Fiscal Agent, the Operating
Adviser, the Placement Agent or either Underwriter or any Rating Agency) of a
sum sufficient to cover the reasonable expenses actually incurred by the Trustee
of providing access or copies (including electronic or digital copies) of any
such information requested in accordance with the preceding sentence.
(g) The Trustee shall make available at its Corporate Trust Office
(either in physical or electronic form), during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any Prospective Investor, each Underwriter, each Rating
Agency, the Special Servicer and the Depositor, originals or copies of, among
other things, the following items: (i) the most recent property inspection
reports in the possession of the Trustee in respect of each Mortgaged Property
and REO Property, (ii) the most recent Mortgaged Property/REO Property annual
operating statement and rent roll, if any, collected or otherwise obtained by or
on behalf of the Master Servicer or the Special Servicer and delivered to the
Trustee, (iii) any Phase I Environmental Report or engineering report prepared
or appraisals performed in respect of each Mortgaged Property provided, however,
that the Trustee shall be permitted to require payment by the requesting party
(other than either Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by the Trustee of providing access or copies
(including electronic or digital copies) of any such information reasonably
requested in accordance with the preceding sentence.
(h) On or within two Business Days following each Distribution Date,
the Trustee shall prepare and furnish to each Financial Market Publisher and
each Underwriter, using the format and media mutually agreed upon by the
Trustee, the Financial Market Publisher and each Underwriter, the following
information regarding each Mortgage Loan and any other information reasonably
requested by either Underwriter and available to the Placement Agent:
(i) the Loan Periodic Update File (in the form attached hereto as
Exhibit W); and
(ii) the Monthly Certificateholders Report.
SECTION 5.5 TRUSTEE TAX REPORTS. The Trustee (or, to the extent
required by the Code or Treasury Regulations, the Tax Matters Person) shall
perform all reporting and other tax compliance duties that are the
responsibility of each REMIC Pool under the Code, REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Consistent with this Agreement, the Trustee shall provide or
cause to be provided (i) to the Internal Revenue Service or other Persons
(including, but not limited to, the Transferor of a Class R-I or Class R-II
Certificate, to a Disqualified Organization or to an agent that has acquired a
Class R-I or Class R-II Certificate on behalf of a Disqualified Organization)
such information as is necessary for the application of any tax relating to the
transfer of a Class R-I or Class R-II Certificate to any Disqualified
Organization and (ii) to the Certificateholders such information or reports as
are required by the Code or REMIC Provisions. The Master Servicer shall on a
timely basis provide the Trustee with such information concerning the Mortgage
Loans as is necessary for the preparation of the tax or information returns or
receipts of each REMIC Pool as the Trustee may reasonably request from time to
time. The Special Servicer is required to provide to the Master Servicer all
information in its possession with respect to the Specially Serviced Mortgage
Loans, including any related REO Property, in order for the Master Servicer to
comply with its obligations under this Section 5.5. The Trustee shall be
entitled to conclusively rely on any such information provided to it by the
Master Servicer or the Special Servicer and shall have no obligation to verify
any such information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Trustee shall (1) first, withdraw from the Distribution Account and
pay to the Fiscal Agent any unpaid fees, expenses and other amounts then
required to be paid pursuant to this Agreement, and then, to the itself, any
unpaid fees, expenses and other amounts then required to be paid pursuant to
this Agreement, and then at the written direction of the Master Servicer,
withdraw from the Distribution Account and pay to the Master Servicer, the
Primary Servicer and Special Servicer any unpaid servicing compensation or other
amounts currently required to be paid pursuant to this Agreement (to the extent
not previously retained or withdrawn by the Master Servicer from the Certificate
Account), and (2) second, make distributions in the manner and amounts set forth
below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register
of the Certificate Registrar or, upon written request to the Trustee no
later than five days after the related Record Date (or upon standing
instructions given to the Trustee on the Closing Date or within five days
after any Record Date, which instructions may be revoked at any time
thereafter upon written notice to the Trustee five days after the related
Record Date) made by a Certificateholder by wire transfer in immediately
available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Trustee shall be
made by wire transfer of immediately available funds to the Distribution
Account and the Reserve Account; and (ii) the final distribution in
respect of any Certificate shall be made only upon presentation and
surrender of such Certificate at such location specified by the Trustee in
a notice delivered to Certificateholders pursuant to Section 10.2(a). If
any payment required to be made on the Certificates is to be made on a day
that is not a Business Day, then such payment will be made on the next
succeeding Business Day without compensation for such delay. All
distributions or allocations made with respect to Holders of Certificates
of a Class on each Distribution Date shall be made or allocated among the
outstanding Interests in such Class in proportion to their respective
initial Certificate Balances or Percentage Interests for the Class X
Certificates.
SECTION 6.2 REMIC I
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of priority:
(i) an amount equal to Distributable Certificate Interest for the
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class
A-4 Certificates and Class X Certificates to REMIC I Regular Interest A-1, REMIC
I Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular Interest
A-4, REMIC I Regular Interest B, REMIC I Regular Interest C, REMIC I Regular
Interest D, REMIC I Regular Interest E, REMIC I Regular Interest F, REMIC I
Regular Interest G, REMIC I Regular Interest H, REMIC I Regular Interest J,
REMIC I Regular Interest K, REMIC I Regular Interest L and REMIC I Regular
Interest M divided among such REMIC I Regular Interests in proportion to (A) in
the case of the REMIC I Regular Interest A-1, REMIC I Regular Interest A-2,
REMIC I Regular Interest A-3 and REMIC I Regular Interest A-4, the Accrued
Certificate Interest for such Distribution Date and (B) in the case of REMIC I
Regular Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D,
REMIC I Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest
G, REMIC I Regular Interest H, REMIC I Regular Interest J, REMIC I Regular
Interest K, REMIC I Regular Interest L and REMIC I Regular Interest M, the
product of one-twelfth of the Certificate Balance of such Interest and the sum
of the related Class X Strip Rate (if any);
(ii) to (A) REMIC I Regular Interest A-1 and REMIC I Regular Interest
A-3 (distributed in respect of REMIC I Regular Interest A-1 until it is reduced
to zero and thereafter to REMIC I Regular Interest A-3) and (B) REMIC I Regular
Interest A-2, pro rata, the Principal Distribution Amount for such Distribution
Date, until the Certificate Balance of REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2 and REMIC I Regular Interest A-3 have been reduced to zero;
(iii) upon payment in full of the Certificate Balances of REMIC I
Regular Interest A-1, REMIC I Regular Interest A-2 and REMIC I Regular Interest
A-3, to REMIC I Regular Interest A-4, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof deemed to be distributed to
REMIC I Regular Interest A-1, REMIC I Regular Interest A-2 and REMIC I Regular
Interest A-3), until the Certificate Balance of REMIC I Regular Interest A-4 has
been reduced to zero;
(iv) to REMIC I Regular Interest A-1, REMIC I Regular Interest A-2,
REMIC I Regular Interest A-3, REMIC I Regular Interest A-4, REMIC I Regular
Interest B, REMIC I Regular Interest C, REMIC I Regular Interest D, REMIC I
Regular Interest E, REMIC I Regular Interest F, REMIC I Regular Interest G,
REMIC I Regular Interest H, REMIC Regular Interest J, REMIC I Regular Interest
K, REMIC I Regular Interest L and REMIC I Regular Interest M, pro rata on the
basis of their respective entitlements to reimbursement described in this clause
(iv), to reimburse any Realized Losses previously allocated to REMIC I Regular
Interest A-1, REMIC I Regular Interest A-2, REMIC I Regular Interest A-3 and
REMIC I Regular Interest A-4, REMIC I Regular Interest B, REMIC I Regular
Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E, REMIC I
Regular Interest F, REMIC I Regular Interest G, REMIC I Regular Interest H,
REMIC I Regular Interest J, REMIC I Regular Interest K, REMIC I Regular Interest
L and REMIC I Regular Interest M as a result of the allocation of Realized
Losses to the Class X Certificates plus interest on such Realized Losses
compounded monthly at one-twelfth of the applicable Pass-Through Rate;
(v) to REMIC I Regular Interest A-1, REMIC I Regular Interest A-2,
REMIC I Regular Interest A-3 and REMIC I Regular Interest A-4, pro rata, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses compounded monthly at one-twelfth the
applicable Pass-Through Rate;
(vi) to REMIC I Regular Interest B, the remainder of the Distributable
Certificate Interest for such Interest for such Distribution Date to the extent
not distributed pursuant to clause (i) above;
(vii) upon payment in full of the Certificate Balances of REMIC I
Regular Interest A, to REMIC I Regular Interest B, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A), until the Certificate Balance of
REMIC I Regular Interest B has been reduced to zero;
(viii) to REMIC I Regular Interest B, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(ix) to REMIC I Regular Interest C, the remainder of the Distributable
Certificate Interest for such Interest for such Distribution Date to the extent
not distributed pursuant to clause (i) above;
(x) upon payment in full of the Certificate Balance of REMIC I Regular
Interest B, to REMIC I Regular Interest C, the Principal Distribution Amount for
such Distribution Date (reduced by any portion thereof deemed to be distributed
to REMIC I Regular Interest A, and REMIC I Regular Interest B), until the
Certificate Balance of REMIC I Regular Interest C has been reduced to zero;
(xi) to REMIC I Regular Interest C, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xii) to REMIC I Regular Interest D, the remainder of the Distributable
Certificate Interest for such Interest for such Distribution Date to the extent
not distributed pursuant to clause (i) above;
(xiii) upon payment in full of the Certificate Balance of REMIC I
Regular Interest C, to REMIC I Regular Interest D, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B and REMIC
I Regular Interest C), until the Certificate Balance of REMIC I Regular Interest
D has been reduced to zero;
(xiv) to REMIC I Regular Interest D, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xv) to REMIC I Regular Interest E, the remainder of the Distributable
Certificate Interest for such Interest for such Distribution Date to the extent
not distributed pursuant to clause (i) above;
(xvi) upon payment in full of the Certificate Balance of REMIC I
Regular Interest D, to REMIC I Regular Interest E, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C and REMIC I Regular Interest D), until the Certificate
Balance of REMIC I Regular Interest E has been reduced to zero;
(xvii) to REMIC I Regular Interest E, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xviii) to REMIC I Regular Interest F, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xix) upon payment in full of the Certificate Balance of REMIC I
Regular Interest E, to REMIC I Regular Interest F, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D and REMIC I Regular Interest E),
until the Certificate Balance of REMIC I Regular Interest F has been reduced to
zero;
(xx) to REMIC I Regular Interest F, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxi) to REMIC I Regular Interest G, the remainder of the Distributable
Certificate Interest for such Interest for such Distribution Date to the extent
not distributed pursuant to clause (i) above;
(xxii) upon payment in full of the Certificate Balance of REMIC I
Regular Interest F, to REMIC I Regular Interest G, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E and
REMIC I Regular Interest F), until the Certificate Balance of REMIC I Regular
Interest G has been reduced to zero;
(xxiii) to REMIC I Regular Interest G, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxiv) to REMIC I Regular Interest H, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxv) upon payment in full of the Certificate Balance of REMIC I
Regular Interest G, to REMIC I Regular Interest H, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E,
REMIC I Regular Interest F and REMIC I Regular Interest G), until the
Certificate Balance of REMIC I Regular Interest H has been reduced to zero;
(xxvi) to REMIC I Regular Interest H, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxvii) to REMIC I Regular Interest J, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxviii) upon payment in full of the Certificate Balance of REMIC I
Regular Interest H, to REMIC I Regular Interest J, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E,
REMIC I Regular Interest F, REMIC I Regular Interest G and REMIC I Regular
Interest H), until the Certificate Balance of REMIC I Regular Interest J has
been reduced to zero;
(xxix) to REMIC I Regular Interest J, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxx) to REMIC I Regular Interest K, the remainder of the Distributable
Certificate Interest for such Interest for such Distribution Date to the extent
not distributed pursuant to clause (i) above;
(xxxi) upon payment in full of the Certificate Balance of REMIC I
Regular Interest J to REMIC I Regular Interest K, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E,
REMIC I Regular Interest F, REMIC I Regular Interest G, REMIC I Regular Interest
H and REMIC I Regular Interest J), until the Certificate Balance of REMIC I
Regular Interest K has been reduced to zero;
(xxxii) to REMIC I Regular Interest K, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxxiii) to REMIC I Regular Interest L, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxxiv) upon payment in full of the Certificate Balance of REMIC I
Regular Interest K to REMIC I Regular Interest L, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E,
REMIC I Regular Interest F, REMIC I Regular Interest G, REMIC I Regular Interest
H, REMIC I Regular Interest J and REMIC I Regular Interest K), until the
Certificate Balance of REMIC I Regular Interest L has been reduced to zero;
(xxxv) to REMIC I Regular Interest L, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xxxvi) to REMIC I Regular Interest M, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxxvii) upon payment in full of the Certificate Balance of REMIC I
Regular Interest L to REMIC I Regular Interest M, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed to REMIC I Regular Interest A, REMIC I Regular Interest B, REMIC
Regular Interest C, REMIC I Regular Interest D, REMIC I Regular Interest E,
REMIC I Regular Interest F, REMIC I Regular Interest G, REMIC I Regular Interest
H, REMIC I Regular Interest J, REMIC I Regular Interest K and REMIC I Regular
Interest L), until the Certificate Balance of REMIC I Regular Interest M has
been reduced to zero;
(xxxviii) to REMIC I Regular Interest M, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate; and
(xxxix) thereafter, to the Class R-I Certificateholders at such time as
the Certificate Balances of all Classes of REMIC I Regular Interests have been
reduced to zero, and Realized Losses previously allocated thereto have been
reimbursed to the Holders of the REMIC I Regular Interests, any amounts
remaining.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
all Classes of Subordinate Interests have been deemed reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of all Classes of Subordinate Interests, the Principal Distribution
Amount will be distributed, first, to the Holders of the REMIC I Regular
Interest A-1, REMIC I Regular Interest A-2, REMIC I Regular Interest A-3 and
REMIC I Regular Interest A-4, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero; and, second, to the
Holders of the REMIC I Regular Interest A-1, REMIC I Regular Interest A-2, REMIC
I Regular Interest A-3 and REMIC I Regular Interest A-4, pro rata, based on the
respective amounts of unreimbursed Realized Losses previously deemed allocated
to each such Class.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account an amount equal to the Available Distribution Amount and
shall distribute such amount in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and Class X
Certificates, Distributable Certificate Interest for such Distribution Date, pro
rata in proportion to the Distributable Certificate Interest payable to each
such Class;
(ii) to the Holders of (A) the Class A-1 Certificates and Class A-3
Certificates (distributed with respect to the Class A-1 Certificates until they
are reduced to zero and thereafter to the Class A-3 Certificates) and (B) the
Class A-2 Certificates, pro rata, the Principal Distribution Amount for such
Distribution Date, until the Certificate Balance of the Class A-1, Class A-2 and
Class A-3 Certificates has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of the Class
A-1, Class A-2 and Class A-3 Certificates, to the Holders of the Class A-4
Certificates, the Principal Distribution Amount for such Distribution Date
(reduced by any portion thereof distributed to the Holders of the Class A-1,
Class A-2 and Class A-3 Certificates), until the Certificate Balance of the
Class A-4 Certificates has been reduced to zero;
(iv) to the Holders of the Class A Certificates and Class X
Certificates, pro rata, to reimburse any Realized Losses previously allocated
thereto plus interest on such Realized Losses compounded monthly at one-twelfth
the applicable Pass-Through Rate;
(v) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the Class
A-4 Certificates, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A Certificates), until the Certificate
Balance of the Class B Certificates has been reduced to zero;
(vii) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate);
(viii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A and Class B Certificates), until the
Certificate Balance of the Class C Certificates has been reduced to zero;
(x) to the Holders of the Class C Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of the Class C
Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B and Class C Certificates),
until the Certificate Balance of the Class D Certificates has been reduced to
zero;
(xiii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xiv) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of the Class D
Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C and Class D
Certificates), until the Certificate Balance of the Class E Certificates has
been reduced to zero;
(xvi) to the Holders of the Class E Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xvii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance of the Class
E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D and Class E
Certificates), until the Certificate Balance of the Class F Certificates has
been reduced to zero;
(xix) to the Holders of the Class F Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the applicable Pass-Through Rate;
(xx) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxi) upon payment in full of the Certificate Balance of the Class F
Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E
and Class F Certificates), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxii) to the Holders of the Class G Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxiii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance of the Class G
Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F and Class G Certificates), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxv) to the Holders of the Class H Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxvi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution date;
(xxvii) upon payment in full of the Certificate Balance of the Class
H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by a any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates), until the Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxviii) to the Holders of the Class J Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxix) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxx) upon payment in full of the Certificate Balance of the Class J
Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates), until the Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxi) to the Holders of the Class K Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxii) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxiii) upon payment in full of the Certificate Balance of the Class K
Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates), until the
Certificate Balance of the Class L Certificates has been reduced to zero;
(xxxiv) to the Holders of the Class L Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxv) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxvi) upon payment in full of the Certificate Balance of the Class L
Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
distributed to the Holders of the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K and Class L Certificates), until the
Certificate Balance of the Class M Certificates has been reduced to zero;
(xxxvii) to the Holders of the Class M Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such Realized
Losses compounded monthly at one-twelfth the Pass-Through Rate; and
(xxxviii) to the Holders of the Class R-II Certificates at such time as
the Certificate Balances of all Classes of REMIC Regular Certificates have been
reduced to zero, and Realized Losses previously allocated to each Holder have
been reimbursed to the Holders of the REMIC Regular Certificates, any amounts
remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
Classes of Subordinate Certificates have been reduced to zero or the aggregate
Appraisal Reduction in effect is greater than or equal to Certificate Balances
of all Classes of Subordinate Certificates, the Principal Distribution Amount
will be distributed, first, to the Holders of the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero; and, second, to the
Holders of the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, pro
rata, based on the respective amounts of unreimbursed Realized Losses previously
allocated to each such Class.
The parties hereto acknowledge that a Realized Loss allocated to a
Principal Balance Certificate on any date shall reduce the Notional Amount of
the Class X Certificates.
(b) On each Distribution Date, the Trustee shall withdraw amounts in
the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses previously allocated to them (to the extent not
reimbursed pursuant to Section 6.3(a)); and
(ii) second, upon the reduction of the Aggregate Certificate Balance of
the Principal Balance Certificates to zero, to pay any amounts remaining on
deposit in such account to the holder of the Class R-1 Certificate.
SECTION 6.4 RESERVED.
SECTION 6.5 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, all Realized Losses and Expense
Losses on the REMIC Regular Certificates for such Distribution Date (or for
prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the Corresponding REMIC I Regular Interests in the amounts and in
the manner as will be allocated to the REMIC Regular Certificates relating
thereto pursuant to Section 6.5(b). Realized Losses allocated to the Class X
Certificates shall be allocated among REMIC I Regular Interest A-1, REMIC I
Regular Interest A-2, REMIC I Regular Interest A-3, REMIC I Regular Interest
A-4, REMIC I Regular Interest B, REMIC I Regular Interest C, REMIC I Regular
Interest D, REMIC I Regular Interest E, REMIC I Regular Interest F, REMIC I
Regular Interest G, REMIC I Regular Interest H, REMIC I Regular Interest J,
REMIC I Regular Interest K, REMIC I Regular Interest L and REMIC I Regular
Interest M, pro rata based on the product of the Certificate Balance of such
REMIC I Regular Interest and the Class X Strip Rate (if any) applicable to the
Corresponding Class of Certificates.
(b) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses for such Distribution Date (or for prior Distribution Dates, to
the extent not previously allocated) shall be allocated to the REMIC Regular
Certificates in Reverse Sequential Order, with such reductions being allocated
among the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates and, only with respect to Realized Interest
Losses, Class X Certificates, pro rata, in each case reducing (A) the
Certificate Balance of such Class until such Certificate Balance is reduced to
zero (pro rata in the case of the Class A Certificates); (B) Unpaid Interest
owing to such Class to the extent thereof; and (C) Distributable Certificate
Interest owing to such Class, provided, that Realized Losses and Expense Losses
shall not reduce the Aggregate Certificate Balance of the REMIC Regular
Certificates below the sum of the Aggregate Certificate Balances of the REMIC I
Regular Interests.
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I
shall be allocated among the REMIC Regular Certificates, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, the amount of any Net Aggregate
Prepayment Interest Shortfalls on the REMIC Regular Certificates in the
aggregate shall be allocated to each Class of Certificates, pro rata, in
proportion to the amount of Accrued Certificate Interest payable to such Class
of Certificates on such Distribution Date, in each case reducing interest
otherwise payable thereon. The amount of Net Aggregate Prepayment Interest
Shortfalls allocated to a Class of Certificates pursuant to the preceding
sentence shall reduce the Distributable Certificate Interest for such Class for
such Distribution Date.
SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee and
Special Servicing Fee payable to the Master Servicer and the Special Servicer,
respectively, shall be adjusted as provided in Section 8.10(c) and Section 9.11
herein. Any amount retained by REMIC I as a result of a reduction of the Master
Servicing Fee and the Special Servicing Fee shall be treated as interest
collected with respect to the prepaid Mortgage Loans with respect to which the
Master Servicing Fee or Special Servicing Fee adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS. Not later than the date on which an
Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing such Mortgage Loan, if such
Principal Balance exceeds $2,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $2,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
standards or an Appraisal which in all cases shall be completed as of the date
that such Mortgage Loan becomes a Required Appraisal Loan; provided that if the
Special Servicer had completed or obtained an Appraisal or internal valuation
within the immediately prior 12 months, the Special Servicer may rely on such
Appraisal or internal valuation and shall have no duty to prepare a new
Appraisal or internal valuation, unless such reliance would not be in accordance
with the Servicing Standard; provided, further, that if the Special Servicer is
required to obtain an Appraisal of a Mortgaged Property after receipt of the
notice described in clause (ii) of the definition of Appraisal Event, such
Appraisal will be obtained no later than 60 days after receipt of such notice
and an internal valuation will be obtained no later than 60 days after receipt
of such notice. Such Appraisal or valuation shall be conducted in accordance
with the definition of "market value" as set forth in 12 C.F.R. ss. 225.62 and
shall be updated at least annually to the extent such Mortgage Loan remains a
Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the Special Servicer, shall be an expense of the Trust and may be
paid from REO Income or, to the extent collections from such related Mortgage
Loan or Mortgaged Property does not cover the expense, such unpaid expense shall
be, subject to Section 4.4 hereof, advanced by the Master Servicer at the
request of the Special Servicer pursuant to Section 4.6 in which event it shall
be treated as a Servicing Advance. The Master Servicer, based on the Appraisal
or internal valuation provided to it by the Special Servicer, shall calculate
any Appraisal Reduction. Notwithstanding the forgoing, without limiting the
obligation to order and obtain an Appraisal or internal valuation, in the event
that the Appraisal or internal valuation, as applicable, has not been delivered
by the Special Servicer to the Master Servicer by the date on which an Appraisal
Event occurs (or, in the case of an Appraisal Event described in clause (ii) of
the definition thereof, within 60 days after receipt of the notice described in
such clause (ii)), the amount of the Appraisal Reduction will be deemed to be an
amount equal to 25% of the current Principal Balance of the related Mortgage
Loan until the Appraisal or internal valuation is received at which point the
Appraisal Reduction shall be re-calculated. The Master Servicer shall calculate
or recalculate the Appraisal Reduction for any Mortgage Loan based on updated
Appraisals or internal valuations provided from time to time to it by the
Special Servicer.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Trustee shall comply
with all federal withholding requirements with respect to payments to
Certificateholders of interest, original issue discount, or other amounts that
the Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding and any amount
so withheld shall be regarded as distributed to the related Certificateholders
for purposes of this Agreement. In the event the Trustee withholds any amount
from payments made to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate to such Certificateholder the amount
withheld.
SECTION 6.10 PREPAYMENT PREMIUMS. Any Prepayment Premium collected with
respect to a Mortgage Loan during any particular Collection Period will be
deemed distributed by the Trustee on the following Distribution Date as follows:
the Trustee shall be deemed to distribute to itself, as holder of the REMIC I
Regular Interests any Prepayment Premiums to the REMIC I Regular Interest then
entitled to distributions of principal from the Principal Distribution Amount
(or, if more than one Class of REMIC I Regular Interests is then entitled to
distributions of principal from the Principal Distribution Amount, such
Prepayment Premiums shall be deemed distributed among such Classes pro rata in
accordance with the relevant amounts of entitlements to distributions of
principal). Following such deemed distributions, the Holders of the respective
Classes of Principal Balance Certificates, other than the Class F, Class G,
Class H, Class J, Class K, Class L and Class M Certificates, then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Trustee will pay to such
Holder(s), an amount equal to, in the case of each such Class, the lesser of (A)
the amount of the Prepayment Premium, and (B) (i) the amount of the Prepayment
Premium multiplied by (ii) a fraction, expressed as a percentage, the numerator
of which is equal to the excess, if any, of the Pass-Through Rate applicable to
the most senior of such Classes of Certificates then outstanding (or, if all
Classes of Class A Certificates are outstanding, the Class A-1 Certificates),
over the relevant Discount Rate, and the denominator of which is equal to the
excess, if any, of the Mortgage Rate of the Mortgage Loan that prepaid over the
relevant Discount Rate. If there is more than one such Class of Principal
Balance Certificates entitled to distributions of principal on such Distribution
Date, the aggregate amount described in the preceding sentence will be allocated
among such Classes on a pro rata basis in accordance with the relative amounts
of entitlement to such distributions of principal. Any portion of such
Prepayment Premium that is not so distributed to the Holders of such Principal
Balance Certificates will be distributed to the Holders of the Class X
Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE AND THE FISCAL AGENT.
(a) The Trustee and the Fiscal Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Fiscal Agent. Any permissive right of the Trustee or the Fiscal Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Fiscal Agent. The Trustee and the Fiscal Agent each shall exercise such
of the rights and powers vested in it by this Agreement and following the
occurrence and during the continuation of any Event of Default hereunder, the
Trustee and Fiscal Agent each shall use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) The Trustee or the Fiscal Agent, as applicable, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Fiscal Agent, as the case may
be, which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they on their face
conform to the requirements of this Agreement; provided that the Trustee or the
Fiscal Agent, as the case may be, shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer or any
other Person to it pursuant to this Agreement. If any such instrument is found
on its face not to conform to the requirements of this Agreement, the Trustee
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(c) Neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
have any liability to the Trust or the Certificateholders arising out of or in
connection with this Agreement, except for their respective negligence or
willful misconduct. No provision of this Agreement shall be construed to relieve
the Trustee, the Fiscal Agent or any of their respective directors, officers,
employees, agents or Controlling Persons from liability for their own negligent
action, their own negligent failure to act or their own willful misconduct or
bad faith; provided that:
(i) neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
be personally liable with respect to any action taken, suffered or omitted to be
taken by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not less
than a majority of the outstanding Certificate Balance of the Certificates;
(ii) no provision of this Agreement shall require either the Trustee,
or the Fiscal Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor any of their respective
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or the Seller, or for the acts or omissions of each
other, including, without limitation, in connection with actions taken pursuant
to this Agreement;
(iv) the execution by the Trustee of any forms or plans of liquidation
in connection with either REMIC Pool shall not constitute a representation by
the Trustee as to the adequacy of such form or plan of liquidation;
(v) none of the Trustee or the Fiscal Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or the Fiscal Agent, as applicable in
accordance with this Agreement. In such event, all legal expense and costs of
such action shall be expenses and costs of the Trust, and the Trustee and the
Fiscal Agent shall be entitled to be reimbursed therefor from the Certificate
Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Fiscal Agent shall be charged with
knowledge of any failure by the Master Servicer or the Special Servicer or by
each other to comply with its obligations under this Agreement or any act,
failure, or breach of any Person upon the occurrence of which the Trustee or the
Fiscal Agent may be required to act, unless a Responsible Officer of the Trustee
or the Fiscal Agent, as the case may be, obtains actual knowledge of such
failure.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Fiscal Agent each may request, and may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) the Trustee and the Fiscal Agent each may consult with counsel and
the advice of such 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 advice or
Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
be personally liable for any action taken, suffered or omitted by such Person in
its reasonable business judgment and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be under any obligation to exercise any
remedies after default as specified in this Agreement or to institute, conduct
or defend any litigation hereunder or relating hereto or make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document (provided the same appears regular on its face), unless
requested in writing to do so by Holders of at least 25% of the Aggregate
Certificate Balance of the Certificates then outstanding provided that, if the
payment within a reasonable time to the Trustee, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee shall be paid by the Certificateholders requesting such examination;
(v) the Trustee and the Fiscal Agent each may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, which agents or attorneys shall have any or all of
the rights, powers, duties and obligations of the Trustee and the Fiscal Agent
conferred on them by such appointment; provided that each of the Trustee and the
Fiscal Agent, as the case may be, shall continue to be responsible for its
duties and obligations hereunder and shall not be liable for the actions or
omissions of the Master Servicer, the Special Servicer, the Depositor or the
actions or omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent shall be required to
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent shall be liable for any
loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the Trustee
nor the Fiscal Agent shall be required to post any surety or bond of any kind in
connection with the execution or performance of its duties hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither the Trustee nor the Fiscal Agent
shall be responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(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
any 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.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
SECTION 7.3 THE TRUSTEE AND THE FISCAL AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee and the Fiscal Agent
each makes no representations as to the validity or sufficiency of this
Agreement, the information contained in the Private Placement Memorandum, the
Prospectus Supplement or Prospectus for the REMIC Regular Certificates or
Residual Certificates (other than the Certificate of Authentication on the
Certificates if the Trustee is the Authenticating Agent) or of any Mortgage
Loan, Assignment of Mortgage or related document save that (i) each of the
Trustee and the Fiscal Agent represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. None of the Trustee or the Fiscal Agent shall be
accountable for the use or application by the Depositor or the Master Servicer
or the Special Servicer or by each other of any of the Certificates or any of
the proceeds of such Certificates, or for the use or application by the
Depositor or the Master Servicer or the Special Servicer or by each other of
funds paid in consideration of the assignment of the Mortgage Loans to the Trust
or deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates or any account maintained pursuant
to this Agreement or for investment of any such amounts. No recourse shall be
had for any claim based on any provisions of this Agreement, the Private
Placement Memorandum, the Prospectus Supplement and Prospectus or the
Certificates (except with respect to the Trustee and Fiscal Agent to the extent
of information furnished by the Trustee and the Fiscal Agent under the caption
entitled "DESCRIPTION OF THE OFFERED CERTIFICATES--The Trustee and the Fiscal
Agent" in the Prospectus Supplement), the Mortgage Loans or the assignment
thereof against the Trustee or the Fiscal Agent in such Person's individual
capacity and any such claim shall be asserted solely against the Trust or any
indemnitor who shall furnish indemnity as provided herein. Neither the Trustee
nor the Fiscal Agent shall be liable for any action or failure of any action by
the Depositor or the Master Servicer or the Special Servicer or by each other
hereunder. Neither the Trustee nor the Fiscal Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of the Mortgages or the Mortgage Loans, or the perfection and
priority of the Mortgages or the maintenance of any such perfection and
priority, or for or with respect to the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation, the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon; the validity of the assignment of the Mortgage Loans to the
Trust or of any intervening assignment; the completeness of the Mortgage Loans;
the performance or enforcement of the Mortgage Loans (other than if the Trustee
shall assume the duties of the Master Servicer); the compliance by the
Depositor, the Seller, the Mortgagor or the Master Servicer or the Special
Servicer or by each other with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation made under this Agreement or in any related document prior to the
receipt by a Responsible Officer of the Trustee 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 Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or
the Special Servicer to act or perform any duties required of it on behalf of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Master Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE AND THE FISCAL AGENT MAY OWN CERTIFICATES. Each
of the Trustee and the Fiscal Agent in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights it would have
if it were not the Trustee or the Fiscal Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE AND THE FISCAL
AGENT. (a) The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association authorized to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority, and (iii) an institution whose
short-term debt obligations are at all times rated not less than "A-1" by S&P
and "P-1" by Moody's and whose long-term senior unsecured debt is at all times
rated not less than "Aa3" by Moody's and "AA" by S&P (unless a Fiscal Agent is
appointed and acting hereunder that has a long-term unsecured rating that is at
least "AA" (without regard to any plus or minus) by S&P and "Aa3" by Moody's) or
otherwise acceptable to the Rating Agencies as evidenced by a Rating Agency
Confirmation. If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with provisions of this Section, the Trustee or the Fiscal Agent
shall resign immediately in the manner and with the effect specified in Section
7.6.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE AND THE FISCAL
AGENT.
(a) The Trustee or the Fiscal Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer and the Rating Agencies; provided that such
resignation shall not be effective until its successor shall have accepted the
appointment. Upon receiving such notice of resignation, the Depositor will
promptly appoint a successor trustee or fiscal agent, as the case may be, except
in the case of the initial Trustee or Fiscal Agent, in which case both shall be
so replaced but may be replaced under this paragraph sequentially, by written
instrument, one copy of which instrument shall be delivered to the resigning
Trustee or the Fiscal Agent, one copy to the successor trustee and one copy to
each of the Master Servicer and the Rating Agencies. If no successor trustee or
fiscal agent shall have been so appointed, as the case may be, and shall have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or the Fiscal Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a successor
trustee or fiscal agent, as the case may be. It shall be a condition to the
appointment of a successor trustee or fiscal agent that such entity satisfies
the eligibility requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or either REMIC Pool by any
state in which the Trustee or the Trust held by the Trustee is located solely
because of the location of the Trustee in such state; provided, however, that,
if the Trustee agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), (iv) the continuation of the Trustee as
such would result in a downgrade, qualification or withdrawal of the rating by
Moody's of any Class of Certificates with a rating as evidenced in writing by
Moody's or (v) with respect with the initial Trustee, a Fiscal Agent Termination
Event has occurred unless the Trustee has satisfied the ratings required by
clause (iii) of Section 7.5, then the Depositor may remove such Trustee and
appoint a successor trustee by written instrument, one copy of which instrument
shall be delivered to the Trustee so removed, one copy to the successor trustee
and one copy to each of the Master Servicer and the Rating Agencies. In the case
of removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall bear
all such costs of transfer. Such succession shall take effect after a successor
trustee has been appointed. In the case of the removal of the initial Trustee,
the Depositor shall also remove the Fiscal Agent. In this case, the procedures
and liability for costs of such removal shall be the same as they are stated in
subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a written notice of
termination to the Fiscal Agent (which notice shall specify the reason for such
termination) and remove such Fiscal Agent and appoint a successor Fiscal Agent
by written instrument, one copy of which instrument shall be delivered to the
Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one copy to
each of the Trustee, the Master Servicer and the Rating Agencies. In all such
cases, the Fiscal Agent shall bear all costs of transfer to a successor Fiscal
Agent, such succession only to take effect after a successor Fiscal Agent has
been appointed. In the case of the initial Fiscal Agent, the Depositor may, but
is not required to, also remove the Trustee. In this case, the procedures and
liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) [Reserved].
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding may for cause upon 30 days' written notice
to the Trustee or the Fiscal Agent, as the case may be, and to the Depositor
remove the Trustee, the Fiscal Agent, as the case may be, by such written
instrument, signed by such Holders or their attorney-in-fact duly authorized,
one copy of which instrument shall be delivered to the Depositor and one copy to
the Trustee or the Fiscal Agent, as the case may be, so removed; the Depositor
shall thereupon use its best efforts to appoint a successor Trustee or Fiscal
Agent, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal Agent, as the
case may be, and appointment of a successor trustee or fiscal agent pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee or fiscal agent, as the case may be, as
provided in Section 7.7. Upon any succession of the Trustee or the Fiscal Agent
under this Agreement, the predecessor Trustee or Fiscal Agent, as the case may
be, shall be entitled to the payment of compensation and reimbursement agreed to
under this Agreement for services rendered and expenses incurred. The Trustee or
the Fiscal Agent shall not be liable for any action or omission of any successor
Trustee, Fiscal Agent, as the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE OR FISCAL AGENT.
(a) Any successor Trustee or Fiscal Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Fiscal Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Fiscal Agent, as the case may be, shall become effective
and such successor Trustee or Fiscal Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Fiscal Agent herein. The predecessor Trustee
or Fiscal Agent shall deliver (at such predecessor's own expense) to the
successor Trustee or Fiscal Agent all Mortgage Files and documents and
statements related to the Mortgage Files held by it hereunder, and the
predecessor Trustee shall duly assign, transfer, deliver and pay over (at such
predecessor's own expense) to the successor Trustee, the entire Trust, together
with all instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer. The predecessor Trustee, Fiscal
Agent, as the case may be, shall also deliver all records or copies thereof
maintained by the predecessor Trustee or Fiscal Agent in the administration
hereof as may be reasonably requested by the successor Trustee or Fiscal Agent,
as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Fiscal Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Fiscal Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Fiscal Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Fiscal Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Fiscal
Agent as provided in this Section, the successor Trustee or Fiscal Agent shall
mail notice of the succession of such Trustee or Fiscal Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Fiscal Agent. If the successor Trustee or Fiscal Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Fiscal Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Fiscal Agent, as
applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE OR FISCAL AGENT. Any
Person into which the Trustee or Fiscal Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee or Fiscal Agent shall be a
party, or any Persons succeeding to the business of such Trustee or Fiscal
Agent, shall be the successor of such Trustee or Fiscal Agent, as the case may
be, hereunder, as applicable, provided that such Person shall be eligible under
the provisions of Section 7.5, 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 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee may from time to time appoint one or more independent
third-party agents to perform all or any portion of its administrative duties
hereunder (i.e., collection and distribution of funds, preparation and
dissemination of reports, monitoring compliance, etc.). The Trustee shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee and such agent, may be terminated, without
cause and without the payment of any termination fees in the event the Trustee
is terminated in accordance with this Agreement. In addition, neither the Trust
nor the Certificateholders shall have any liability or direct obligation to such
agent. Notwithstanding the terms of any such agreement, the Trustee shall remain
at all times obligated and liable to the Trust and the Certificateholders for
performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other 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, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master 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 or any
portion thereof in any such jurisdiction, shall be exercised and performed by
such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder; and
(iv) the Trustee or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Principal Amount of the Certificates
then outstanding may at any time accept the resignation of or remove any
separate trustee, co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this Agreement.
(d) 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, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian 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, co-trustee or custodian 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.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not be
unreasonably withheld, the Trustee, at its sole cost and expense, may appoint at
any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Trustee shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor
(only if the Trustee is not acting as Authenticating Agent). The Trustee may at
any time terminate the agency of the Authenticating Agent by giving written
notice of termination to the Authenticating Agent and the Depositor. 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 Section 7.10(a), the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. 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. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE AND THE FISCAL AGENT.
(a) The Trustee and the Fiscal Agent, and each of its respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgements and any other
costs, liabilities, fees and expenses incurred in connection with any legal
action incurred without negligence or willful misconduct on their respective
part, arising out of, or in connection with this Agreement, the Certificates and
the acceptance or administration of the trusts or duties created hereunder
(including, without limitation, any unanticipated loss, liability or expense
incurred in connection with any action or inaction of the Master Servicer, the
Special Servicer or the Depositor or of each other such Person hereunder but
only to the extent the Trustee or the Fiscal Agent, as the case may be, is
unable to recover within a reasonable period of time such amount from such third
party pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee and the Fiscal Agent and
each of their respective directors, officers, employees, agents and Controlling
Persons shall be entitled to indemnification from the Trust for any
unanticipated loss, liability or expense incurred in connection with the
provision by the Trustee and the Fiscal Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee or the Fiscal Agent, as
the case may be, shall have given the Depositor, the Master Servicer, the
Seller, each other and the Holders of the Certificates written notice thereof
promptly after a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be, shall have knowledge thereof; provided, however that failure to
give such notice to the Depositor, Master Servicer, the Seller, each other and
the Holders of Certificates shall not affect the Trustee's or Fiscal Agent's, as
the case may be, rights to indemnification herein unless the Depositor's defense
of such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee or the
Fiscal Agent, as the case may be, shall cooperate and consult fully with the
Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the Trustee or
the Fiscal Agent, as the case may be, entered into without the prior consent of
the Depositor, which consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee or the Fiscal
Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee or the
Fiscal Agent, as the case may be, their respective directors, officers,
employees or agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee or the Fiscal Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Persons may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, the
Prospectus Supplement or the Prospectus, or arises out of, or is based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading and shall reimburse the
Trustee or the Fiscal Agent, as the case may be, their respective directors,
officers, employees, agents or Controlling Persons for any legal and other
expenses reasonably incurred by the Trustee or the Fiscal Agent, as the case may
be, or any such director, officer, employee, agent or Controlling Persons in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided, that the Depositor shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission made in any such Private Placement Memorandum, Prospectus
Supplement or Prospectus in reliance upon and in conformity with written
information concerning the Trustee or the Fiscal Agent, as the case may be,
furnished to the Depositor by or on behalf of such person specifically for
inclusion therein. It is hereby expressly agreed that the only written
information provided by the Trustee or the Fiscal Agent, as the case may be, for
inclusion in the Prospectus Supplement is set forth in the case of the Trustee
in the second, fourth and fifth sentences and in the case of the Fiscal Agent in
the penultimate sentence under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee and the Fiscal Agent." The Trustee or the Fiscal
Agent, as the case may be, shall immediately notify the Depositor and the Seller
if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Persons to indemnification hereunder, whereupon the Depositor shall assume the
defense of any such claim (with counsel reasonably satisfactory to such person)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Depositor shall not affect any rights the Trustee or the Fiscal Agent, as the
case may be, their respective directors, officers, employees, agents or
Controlling Persons may have to indemnification under this Section 7.11(c),
unless the Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement and the resignation or removal of the Trustee or the Fiscal Agent. The
Depositor shall not be indemnified by the Trust for any expenses incurred by the
Depositor arising from any violation or alleged violation of the 1933 Act or
1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE AND THE FISCAL AGENT. The
Trustee shall be entitled to receive the Trustee Fee, pursuant to Section
5.3(b)(ii) (which shall not be limited by any provision of law with respect to
the compensation of a trustee of an express trust), for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties respectively, hereunder of the
Trustee. The Trustee and the Fiscal Agent shall also be entitled to recover from
the Trust all reasonable unanticipated expenses and disbursements incurred or
made by the Trustee or the Fiscal Agent in accordance with any of the provisions
of this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee or Fiscal Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee or
the Fiscal Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or receivable
by the Trustee pursuant to this Agreement. The Trustee shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant to
this Agreement, the Trustee shall be the successor in all respects to the Master
Servicer in its capacity under this Agreement and the transactions set forth or
provided for therein and shall have all the rights and powers and be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by the Master Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
the Master Servicer contained in this Agreement or (ii) any obligation incurred
by the Master Servicer prior to its termination or resignation (including,
without limitation, the Master Servicer's obligation to repay losses resulting
from the investment of funds in any account established under this Agreement),
except any ongoing obligations to the Primary Servicer arising after the
termination of the Master Servicer from its servicing rights and obligations
under the Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
the Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to the Master Servicer
set forth in this Agreement, including, without limitation, the Master Servicing
Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that, such
Affiliate must meet the standards for the Master Servicer as set forth herein.
In connection with such appointment and assumption, 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 subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The Master Servicer shall
cooperate with the Trustee and any successor servicer in effecting the
termination of the Master Servicer's responsibilities and rights under this
Agreement, including, without limitation, notifying Mortgagors of the assignment
of the servicing function and providing the Trustee and successor servicer all
documents and records in its possession in electronic or other form reasonably
requested by the successor servicer to enable the successor servicer to assume
the Master Servicer's functions hereunder and the transfer to the Trustee or
such successor servicer of all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received by the Master Servicer with respect to the Mortgage Loans. Neither the
Trustee nor any other successor servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. The Trustee shall be reimbursed for all
of its out-of-pocket expenses incurred in connection with obtaining such
successor Master Servicer by the Trust within 30 days of the Trustee's
submission of an invoice with respect thereto, to the extent such expenses have
not been reimbursed by the Master Servicer as provided herein; such expenses
paid by the Trust shall be deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to the Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Special
Servicer by the terms and provisions of this Agreement; provided that, any
failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established commercial or
multifamily mortgage finance institution, special servicer or mortgage servicing
institution having a net worth of not less than $15,000,000, and meeting such
other standards for a successor Special Servicer as are set forth in Section
9.21, and with respect to which Rating Agency Confirmation is obtained, as the
successor to the Special Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a special servicer as Special
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity as hereinabove provided. Any entity designated by the Trustee as
successor Special Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for a successor Special Servicer set
forth herein. In connection with such appointment and assumption, 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 that
no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as provided herein; and such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer or the Special Servicer, or appointment of a successor to the Master
Servicer or the Special Servicer, the Trustee shall promptly mail notice thereof
by first class mail to the Rating Agencies, the Operating Adviser, the Seller
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND THE
FISCAL AGENT.
(a) The Trustee hereby represents and warrants as of the Closing Date
that:
(i) the Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws governing its creation and
existence and has full power and authority to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement have
been duly authorized by all necessary action on the part of the Trustee; neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated in this Agreement, nor compliance with the provisions
of this Agreement, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Trustee or its properties
that would materially and adversely affect the Trustee's ability to perform its
obligations under this Agreement, (ii) the organizational documents of the
Trustee, or (iii) the terms of any material agreement or instrument to which the
Trustee is a party or by which it is bound; the Trustee is not in default with
respect to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or other governmental agency, which default
would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Trustee
and, assuming due authorization, execution and delivery by the other parties
hereto, constitutes a valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
other similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the Closing
Date that:
(i) the Fiscal Agent is a foreign banking corporation duly organized,
validly existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Fiscal Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Fiscal
Agent or its properties that would materially and adversely affect the Fiscal
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal Agent of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the Fiscal
Agent and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Fiscal Agent,
enforceable against the Fiscal Agent in accordance with its terms, subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's knowledge,
threatened, against the Fiscal Agent that, either in any one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Fiscal Agent to perform
under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE AND THE FISCAL AGENT. Each of the Trustee and the
Fiscal Agent, at its own respective expense, shall maintain in effect a Fidelity
Bond and an Errors and Omissions Insurance Policy. The Errors and Omissions
Insurance Policy and Fidelity Bond shall be issued by a Qualified Insurer in
form and in amount customary for trustees or fiscal agents in similar
transactions (unless the Trustee or the Fiscal Agent, as the case may be, self
insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee or the
Fiscal Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee or the Fiscal Agent, as the case may be, is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "Baa1" as rated by Moody's and
"BBB" as rated by S&P respectively, the Trustee or the Fiscal Agent, as the case
may be, may self-insure for the Fidelity Bond and the Errors and Omissions
Insurance Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Master Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the Master
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole; provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer of the collectibility of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
Master Servicer, including with respect to Master Servicing Fees or the right to
be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and Seller within two Business Days after
becoming aware (x) that a Servicing Transfer Event has occurred with respect to
a Mortgage Loan or (y) that a Mortgage Loan has become a Rehabilitated Mortgage
Loan, which notice shall identify the applicable Mortgage Loan and, in the case
of an event specified in clause (x) of this subclause (b) above, the Servicing
Transfer Event that occurred.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master
Servicer self insures as provided below) and be in form and amount consistent
with the Servicing Standard. In the event that any such Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the
Master Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. So long as the long-term rating of the Master Servicer is not
less than two rating categories (ignoring pluses or minuses) lower than the
highest rating of the Certificates, but in any event not less than "Baa1" as
rated by Moody's and "BBB" as rated by S&P, respectively, the Master Servicer
may self-insure for the Servicer Fidelity Bond and the Servicer Errors and
Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage Loans
and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and
as otherwise provided herein and by the Code, have full power and authority to
do any and all things which it may deem necessary or desirable in connection
with such servicing and administration in accordance with the Servicing
Standard. To the extent consistent with the foregoing and subject to any express
limitations and provisions set forth in this Agreement, the Master Servicer
shall have full power and authority with respect to each Mortgage Loan and
Mortgaged Property (other than any Specially Serviced Mortgaged Loan and the
related Mortgaged Property or any REO Property) to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof, (A) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel certificates,
financing statements, continuation statements, title endorsements and reports
and other documents and instruments necessary to preserve and maintain the lien
on the related Mortgaged Property and related collateral), (B) to consent to
assignments and assumptions or substitutions, and transfers of interest of any
Mortgagor, in each case subject to and in accordance with the terms of the
related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds,
(D) subject to Section 8.7, to consent to any subordinate financings to be
secured by any related Mortgaged Property to the extent that such consent is
required pursuant to the terms of the related Mortgage or which otherwise is
required, and, subject to Section 8.7, to consent to any mezzanine debt to the
extent such consent is required pursuant to the terms of the related Mortgage;
(E) to administer and monitor the application of such proceeds and awards in
accordance with the terms of the Mortgage Loan as the Master Servicer deems
reasonable under the circumstances and, subject to the terms of Section 8.18, to
consent to the application of any proceeds of insurance policies or condemnation
awards to the restoration of the related Mortgaged Property or otherwise, (F)
subject to Section 8.18 to execute and deliver, on behalf of the
Certificateholders and the Trustee, documents relating to the management,
operation, maintenance, repair, leasing and marketing of the related Mortgaged
Properties, including agreements and requests by the Mortgagor with respect to
modifications of the standards of operation and management of the Mortgaged
Properties or the replacement of asset managers, (G) subject to Section 8.18, to
consent to any operation or action under a Mortgage Loan that is contemplated or
permitted under a Mortgage or other documents evidencing or securing the
applicable Mortgage Loan (either as a matter of right or upon satisfaction of
specified conditions), (H) to obtain, release, waive or modify any term other
than a Money Term of a Mortgage Loan and related documents subject to and to the
extent permitted by Section 8.18, (I) subject to Section 8.18, to exercise all
rights, powers and privileges granted or provided to the holder of the Mortgage
Notes under the terms of the Mortgage, including all rights of consent or
approval thereunder, (J) subject to Section 8.18, to enter into lease
subordination agreements, non-disturbance and attornment agreements or other
leasing or rental arrangements which may be requested by the Mortgagor or the
Mortgagor's tenants, (K) subject to Section 8.18, to join the Mortgagor in
granting, modifying or releasing any easements, covenants, conditions,
restrictions, equitable servitudes, or land use or zoning requirements with
respect to the Mortgaged Properties to the extent such does not adversely affect
the value of the related Mortgage Loan or Mortgaged Property and (L) to execute
and deliver, on behalf of itself, the Trustee, the Trust or any of them, 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 and with respect to the Mortgaged Properties. Notwithstanding the above,
the Master Servicer shall have no power to (i) waive any Prepayment Premiums or
(ii) consent to any modification of a Money Term of a Mortgage Loan. Nothing
contained in this Agreement shall limit the ability of the Master Servicer to
lend money to (to the extent not secured, in whole or in part, by any Mortgaged
Property), accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though the Master Servicer was not a
party to this Agreement or to the transactions contemplated hereby; provided,
however, that this sentence shall not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing and P&I Advances as
set forth herein and to render such incidental services with respect to such
Specially Serviced Mortgage Loans, all as are specifically provided for herein,
but shall have no other servicing or other duties with respect to such Specially
Serviced Mortgage Loans. The Master Servicer shall give notice within three
Business Days to the Special Servicer of any collections it receives from any
Specially Serviced Mortgage Loans, subject to changes agreed upon from time to
time by the Special Servicer and the Master Servicer. The Special Servicer shall
instruct within one Business Day after receiving such notice the Master Servicer
on how to apply such funds. The Master Servicer within one Business Day after
receiving such instructions shall apply such funds in accordance with the
Special Servicer's instructions. Each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. The Master Servicer shall not be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee will
sign the Power of Attorney attached hereto as Exhibit S-1. From time to time
until the termination of the Trust, upon receipt of written request of the
Master Servicer, the Trustee shall furnish the Master Servicer or any of the
Primary Servicer with any additional powers of attorney and other documents
necessary or appropriate to enable the Master Servicer to service and administer
the Mortgage Loans including, without limitation, documents relating to the
management, operation, maintenance, repair, leasing or marketing of the
Mortgaged Properties. The Master Servicer shall indemnify the Trustee for any
costs, liabilities and expenses (including attorneys' fees) incurred by the
Trustee in connection with the intentional or negligent misuse of such power of
attorney by the Master Servicer. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) take any
action with the intent to, and which actually does cause, the Trustee to be
registered to do business in any state, provided, however, that the preceding
clause (i) shall not apply to the initiation of actions relating to a Mortgage
Loan that the Master Servicer or the Special Servicer, as the case may be, is
servicing pursuant to its respective duties herein (in which case the Master
Servicer or the Special Servicer, as the case may be, shall give three (3)
Business Days prior notice to the Trustee of the initiation of such action). The
limitations of the preceding clause shall not be construed to limit any duty or
obligation imposed on the Trustee under any other provision of this Agreement.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the Primary Servicer on its behalf) shall
segregate and hold all funds collected and received pursuant to any Mortgage
Loan constituting Escrow Amounts 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 Amounts
shall be deposited within one (1) Business Day after receipt. Each Escrow
Account shall be an Eligible Account. The Master Servicer shall also deposit
into each Escrow Account any amounts representing losses on Eligible Investments
pursuant to the immediately succeeding paragraph 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. Each
Escrow Account shall be maintained in accordance with the requirements of the
related Mortgage Loan and in accordance with the Servicing Standard. Withdrawals
from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow Amounts for
the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to reimburse the
Master Servicer for any Advance relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of
this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest or
investment income earned on funds deposited in the Escrow Account if such income
is required to be paid to the related Mortgagor under applicable law or by the
terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master Servicer
may direct any depository institution or trust company in which the Escrow
Accounts are maintained to invest the funds held therein in one or more Eligible
Investments; provided, however, that such funds shall be either (x) immediately
available or (y) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established; (ii) the Master Servicer shall be entitled to all income and gain
realized from any such investment of funds as additional servicing compensation;
and (iii) the Master Servicer shall deposit from its own funds in the applicable
Escrow Account the amount of any loss incurred in respect of any such investment
of funds immediately upon the realization of such loss. The Master Servicer
shall not direct the investment of funds held in any Escrow Account and retain
the income and gain realized therefrom if the terms of the related Mortgage Loan
or applicable law permit the Mortgagor to be entitled to the income and gain
realized from the investment of funds deposited therein, and the Master Servicer
shall not be required to invest amounts on deposit in Escrow Accounts in
Eligible Investments or Eligible Accounts to the extent that the Master Servicer
is required by either law or under the terms of any related Mortgage Loan to
deposit or invest (or the Borrower is entitled to direct the deposit or
investment of) such amounts in another type of investments or accounts. In the
event the Master Servicer is not entitled to direct the investment of such
funds, (1) the Master Servicer shall direct the depository institution or trust
company in which such Escrow Accounts are maintained to invest the funds held
therein in accordance with the Mortgagor's written investment instructions, if
the terms of the related Mortgage Loan or applicable law require the Master
Servicer to invest such funds in accordance with the Mortgagor's directions; and
(2) in the absence of appropriate written instructions from the Mortgagor, the
Master Servicer shall have no obligation to, but may be entitled to, direct the
investment of such funds; provided, however, that in either event (i) such funds
shall be either (y) immediately available or (z) available in accordance with a
schedule which will permit the Master Servicer to meet the payment obligations
for which the Escrow Account was established, and (ii) the Master Servicer shall
have no liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and to each other under this Agreement is intended by
the parties to be that of an independent contractor and not of a joint venturer,
partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of the
related Mortgage Loan, any Lock-Box Agreement or similar agreement, the Master
Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage, any
Lock-Box Agreement and in accordance with the Servicing Standard.
(h) [Reserved]
(i) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, promptly
(and in any event within 45 days of the Closing Date) notify the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to the Master Servicer.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING. (a) The parties hereto
(A) acknowledge that the Master Servicer has delegated certain of its
obligations and assigned certain of its rights under this Agreement to the
Primary Servicer pursuant to the Primary Servicing Agreement; and (B) agree: (1)
in addition to those obligations specifically delegated by the Master Servicer
to the Primary Servicer under the Primary Servicing Agreement, the Primary
Servicer shall also perform the Master Servicer's obligations set forth in
Sections 2.1(c) and 2.1(d) of this Agreement as such Sections relate to the
Mortgage Loans; (2) in addition to those rights specifically granted by the
Master Servicer to the Primary Servicer under the Primary Servicing Agreement,
those rights set forth in Section 8.24 hereof accruing to the benefit of the
Master Servicer shall also accrue to the benefit of the Primary Servicer; (3)
any release from liability set forth in this Agreement accruing to the benefit
of the Master Servicer shall also, to the extent applicable, benefit the Primary
Servicer; and (4) for each notice, certification, report, schedule, statement or
other type of writing that a party hereto is obligated to deliver to the Master
Servicer, such party shall deliver to the Primary Servicer a copy of such
notice, certification, report, schedule, statement or other type of writing at
the time and in the same manner that any of the foregoing is required to be
delivered to the Master Servicer. Notwithstanding the provisions of the Primary
Servicing Agreement, any sub-servicing agreement or any other provisions of this
Agreement, the Master Servicer shall remain obligated and liable to the Trustee
and the Certificateholders for servicing and administering of the Mortgage Loans
in accordance with the provisions of this Agreement to the same extent as if the
Master Servicer was alone servicing and administering the Mortgage Loans. The
Master Servicer or the Primary Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage Loans by any
Sub-Servicer appointed by it. The terms of any arrangement or agreement between
the Master Servicer or the Primary Servicer and a Sub-Servicer shall provide
that such agreement or arrangement may be terminated, without cause and without
the payment of any termination fees, by the Trustee in the event such Master
Servicer or the Primary Servicer is terminated in accordance with this Agreement
or the Primary Servicing Agreement. In addition, neither the Trustee nor the
Certificateholders shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with respect to any
Sub-Servicer. The Master Servicer or the Primary Servicer shall pay the costs of
enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any sub-servicing agreement or the
Primary Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or the Primary Servicer
or a Sub-Servicer, or reference to actions taken through a Sub-Servicer or
otherwise, the Master Servicer or the Primary Servicer shall remain obligated
and liable to the Trustee and the Certificateholders for the servicing and
administering of the Mortgage Loans in accordance with (and subject to the
limitations contained within) the provisions of this Agreement or the Primary
Servicing Agreement without diminution of such obligation or liability by virtue
of indemnification from the Primary Servicer or a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Master Servicer or the
Primary Servicer alone were servicing and administering the Mortgage Loans.
(b) The Master Servicer and the Primary Servicer may appoint one or
more sub-servicers (each, a "Sub-Servicer") to perform all or any portion of its
duties hereunder for the benefit of the Trustee and the Certificateholders,
provided, however, that any decision or recommendation involving the exercise of
the Primary Servicer's discretion as a "lender" under any loan document with
respect to a Mortgage Loan shall be exercised only by the Primary Servicer and
may not be delegated to a Sub-Servicer.
The Master Servicer shall enter into the Primary Servicing Agreement
with the Primary Servicer and shall not terminate such agreements except in
accordance with the terms thereof. To the extent consistent with the rights of
the Primary Servicer under this Agreement and the Primary Servicing Agreement,
but not in limitation of any other rights granted to the Primary Servicer in
this Agreement and/or in the Primary Servicing Agreement, the Primary Servicer
shall have all of the rights and obligations of a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) the Primary Servicer's rights and obligations under the Primary
Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Primary
Servicing Agreement has not been terminated in accordance with its provisions;
(ii) any successor Master Servicer, including, without limitation, the Trustee
(if it assumes the servicing obligations of the Master Servicer) shall be deemed
to automatically assume and agree to the Primary Servicing Agreement without
further action upon becoming the successor Master Servicer; (iii) this Agreement
may not be modified in any manner which would materially and adversely increase
the obligations or limit the rights of the Primary Servicer hereunder and/or
under the Primary Servicing Agreement, without the prior written consent of the
Primary Servicer; (iv) the parties hereto recognize that although the Primary
Servicer is not a party to this Agreement, this Agreement has been entered into
with (A) the express intent that the Primary Servicer (together with its
successors and assigns) be a third party beneficiary to this Agreement to the
extent of its rights specifically set forth herein with all of the rights and
remedies to enforce such rights under this Agreement in the same fashion as if
the Primary Servicer (together with their respective successors and assigns)
were a direct party thereto having privity of contract with the parties to this
Agreement and (B) the express understanding that such third party beneficiary
status has been directly relied upon by the Primary Servicer as consideration
for and as an inducement to enter into the Primary Servicing Agreement.
If a task, right or obligation of Master Servicer is delegated to the
Primary Servicer under the Primary Servicing Agreement, and such task, right or
obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of the Primary Servicing
Agreement and this Agreement (including without limitation any time periods for
consent or deemed consent to be observed by the Special Servicer) as if Master
Servicer were performing it, subject to Master Servicer's continuing obligations
hereunder.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer and the
Primary Servicer and any agent of the Master Servicer or Primary Servicer in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Master Servicer or such
agent. Any such interest of the Master Servicer or Primary Servicer or such
agent in the Certificates shall not be taken into account when evaluating
whether actions of the Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES AND
OTHER. Subject to the limitations set forth below, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to maintain for each Mortgage Loan (other than any REO Mortgage Loan),
and if the related Mortgagor does not so maintain, the Master Servicer shall
cause to be maintained with a Qualified Insurer, (A) a Standard Hazard Insurance
Policy which does not provide for reduction due to depreciation in an amount
that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding principal
balance of such REO Mortgage Loan, but, in any event, in an amount sufficient to
avoid the application of any co-insurance clause and (B) any other insurance
coverage for a Mortgage Loan which the related Mortgagor is required to maintain
under the related Mortgage, provided the Master Servicer shall not be required
to maintain earthquake insurance on any Mortgaged Property unless such insurance
was required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property so long
as such insurance is available at commercially reasonable rates.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the Master Servicer (with respect to any Mortgaged
Property that is not an REO Property) shall cause flood insurance to be
maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan so permit. Such costs shall be paid as a Servicing Advance by the Master
Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, the Master Servicer shall not
be required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard. The Master Servicer shall notify the Trustee in the event it
makes such determination.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer or (ii)
if the Master Servicer, provided that its long-term rating is not less than "A2"
by Moody's and "A" by S&P, self-insures for its obligations as set forth in the
first paragraph of this Section 8.6. In the event that the Master Servicer shall
cause any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by the Master Servicer as a Servicing
Advance. If such policy contains a deductible clause, the Master Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 8.6 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, the Master Servicer agrees to present, on its behalf and
on behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of taxes, assessments and other similar items that are or may become a
lien on the related Mortgaged Property and the status of insurance premiums
payable with respect thereto. From time to time, the Master Servicer (other than
with respect to REO Mortgage Loans) shall (i) obtain all bills for the payment
of such items (including renewal premiums), and (ii) except in the case of
Mortgage Loans under which Escrow Amounts are not held by the Master Servicer,
effect payment of all such bills, taxes and other assessments with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case employing for such purpose Escrow Amounts as allowed under the
terms of the related Mortgage Loan. If a Mortgagor fails to make any such
payment on a timely basis or collections from the Mortgagor are insufficient to
pay any such item before the applicable penalty or termination date, the Master
Servicer in accordance with the Servicing Standard shall use its reasonable
efforts to pay as a Servicing Advance the amount necessary to effect the payment
of any such item prior to such penalty or termination date, subject to Section
4.4 hereof. No costs incurred by the Master Servicer, the Trustee or the Fiscal
Agent as the case may be, in effecting the payment of taxes and assessments on
the Mortgaged Properties and related insurance premiums shall, for the purpose
of calculating distributions to Certificateholders, be added to the principal
balance of the Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits, subject to any
conditions set forth in the Mortgage Loan documents, the assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, the Master Servicer shall obtain relevant information for purposes of
evaluating such request. For the purpose of the foregoing sentence, the term
`expressly permits' shall include outright permission to assign, permission to
assign upon satisfaction of certain conditions or prohibition against assignment
except upon the satisfaction of stated conditions. If the Master Servicer
recommends to approve such assignment, the Master Servicer shall provide to the
Special Servicer a copy of such recommendation and the materials upon which such
recommendation is based (which information shall consist of the information to
be included in the Assignment and Assumption Submission to Special Servicer, in
the form attached hereto as Exhibit U) and (A) the Special Servicer shall have
the right hereunder to grant or withhold consent to any such request for such
assignment and assumption in accordance with the terms of the Mortgage Loan and
this Agreement and the Special Servicer shall not unreasonably withhold its
consent and any such decision of the Special Servicer shall be in accordance
with the Servicing Standard, (B) failure of the Special Servicer to notify the
Master Servicer within five (5) Business Days following the Master Servicer's
delivery of the recommendation described above and the complete Assignment and
Assumption Submission to the Special Servicer in the form attached as Exhibit U
on which the recommendation is based to the Special Servicer, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not permit any such
assignment or assumption unless it has received the written consent of the
Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence. The Special Servicer hereby acknowledges
the delegation of rights and duties hereunder pursuant to the provisions of the
Primary Servicing Agreement. If the Special Servicer withholds consent pursuant
to the above provisions, it shall simultaneously provide the Master Servicer and
the Primary Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent by the Special Servicer to such proposed
assignment and assumption and, to the extent, for any Review Threshold Loan, a
condition to an assignment of such Review Threshold Loan includes the
Mortgagee's consent of the proposed transferee, upon the obtaining of Rating
Agency Confirmation, the Master Servicer shall process such request of the
related Mortgagor and shall be authorized to enter into an assignment and
assumption or substitution agreement with the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed, and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed. Neither the Master Servicer nor the Special
Servicer shall consent to any assumption or substitution agreement to the extent
that any terms thereof would result in an Adverse REMIC Event or create any lien
on a Mortgaged Property that is senior to, or on parity with, the lien of the
related Mortgage. To the extent permitted by applicable law, the Special
Servicer shall not consent to such an assumption or substitution agreement
unless the credit status of the prospective new Mortgagor is in conformity to
the terms of the related Mortgage Loan documents. In making its recommendation,
the Master Servicer shall evaluate such conformity in accordance with the
Servicing Standard. The Master Servicer shall notify the Trustee and the Special
Servicer of any assignment and assumption or substitution agreement executed
pursuant to this Section 8.7(a). The Master Servicer shall be entitled to (as
additional servicing compensation) 50% of any assumption fee collected from a
Mortgagor in connection with an assignment and assumption or substitution
executed pursuant to this Section 8.7(a) and the Special Servicer shall be
entitled to (as additional special servicing compensation) the other 50% of such
fee.
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan contains a provision in the nature of a "due-on-sale"
clause, (i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale of the related Mortgaged Property,
or (ii) provides that such Mortgage Loan may not be assumed without the consent
of the related mortgagee in connection with any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, and not the Master Servicer,
shall either (i) enforce such due-on-sale clause or (ii) if it believes such
action would be in the best economic interest of the Trust, waive the effect of
such provision; provided, however, that if the Principal Balance of such
Mortgage Loan at such time equals or exceeds the lesser of 5% of the Aggregate
Certificate Balance and $20 million (a "Review Threshold Loan"), then prior to
waiving the effect of such provision, the Special Servicer shall obtain Rating
Agency Confirmation regarding such waiver. In connection with the request for
such consent, the Special Servicer shall prepare and deliver to Moody's and S&P
a memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Master Servicer and the Trustee,
and the Master Servicer shall promptly thereafter forward such documents to the
Rating Agencies. The Special Servicer shall be entitled to (as additional
special servicing compensation) 100% of any fee collected from a Mortgagor in
connection with the Special Servicer granting or withholding such consent.
(c) The Master Servicer shall have the right to consent to any
transfers of interest of a Mortgagor, to the extent such transfer is allowed
under the terms of the related Mortgage Loan, including any consent and transfer
to any subsidiary or affiliate of the Mortgagor or to a person acquiring less
than a majority interest in the Mortgagor; provided, for any Review Threshold
Loan in which an aggregate of greater than 49% of the interests in the Mortgagor
are proposed to be transferred, the Master Servicer obtains Rating Agency
Confirmation regarding such transfer. The Master Servicer shall be entitled to
collect and receive from the Mortgagor any customary fees in connection with
such transfers of interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders shall execute
any necessary instruments in the form presented to it by the Master Servicer
(pursuant to subsection (a)) or the Special Servicer (pursuant to subsection
(b)) for such assignments and assumptions agreements. Upon the closing of the
transactions contemplated by such documents, the Master Servicer or the Special
Servicer, as the case may be, shall cause the originals of the assignment and
assumption agreement, the release (if any), or the modification or supplement to
the Mortgage Loan to be delivered to the Trustee except to the extent such
documents have been submitted to the recording office, in which event the Master
Servicer shall promptly deliver copies of such documents to the Trustee and the
Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan) which contains a provision in the nature of a "due-on-encumbrance" clause,
which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien or other
encumbrance on the related Mortgaged Property or a lien on the ownership
interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any such
additional lien or other encumbrance on the related Mortgaged Property,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) subject to Section 8.18, to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard and Section 8.18 hereof. Prior to waiving the effect of such provision,
the Master Servicer shall obtain Rating Agency Confirmation regarding such
waiver and shall comply with the provisions of the next succeeding paragraph;
provided, with respect to Moody's only, Rating Agency Confirmation is only
required for Review Threshold Loans.
Without limiting the generality of the preceding sentence, in the event
that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the information
to be included in the Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer, in the form attached
hereto as Exhibit V) and (A) the Special Servicer shall have the right hereunder
to grant or withhold consent to any such request in accordance with the terms of
the Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within five (5) Business Days
following the Master Servicer's delivery of the recommendation described above
and the complete Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Servicer on which the recommendation is based,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not permit
any such waiver unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as described in
the preceding sentence. If the Special Servicer withholds consent pursuant to
the foregoing provisions, it shall simultaneously provide to the Master Servicer
a written statement and a verbal explanation as to its reasoning and analysis.
Upon consent or deemed consent by the Special Servicer to such proposed waiver,
the Master Servicer shall process such request of the related Mortgagor subject
to the other requirements set forth above.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, satisfaction or discharge in full
of any Specially Serviced Mortgage Loan or the receipt by the Master Servicer of
a notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the Master Servicer in the form of 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
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Trustee shall execute and deliver to the Master
Servicer the deed of reconveyance or release, satisfaction or assignment of
mortgage or such instrument releasing the lien of the Mortgage, as directed by
the Master Servicer together with the Mortgage Note with written evidence of
cancellation thereon. The provisions of the immediately preceding sentence shall
not, in any manner, limit or impair the right of the Master Servicer to execute
and deliver, on behalf of the Trustee, the Certificateholders or any of them,
any and all instruments of satisfaction, cancellation or assignment without
recourse, representation or warranty, or of partial or full release or discharge
and all other comparable instruments, with respect to the Mortgage Loans, and
with respect to the Mortgaged Properties held for the benefit of the
Certificateholders. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account but shall be paid by the Master Servicer except to the extent that such
expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Trustee Mortgage File, the Trustee shall, upon request
of the Master Servicer and the delivery to the Trustee of a Request for Release
signed by a Servicing Officer, in the form of Exhibit C hereto, release the
Trustee Mortgage File to the Master Servicer or the Special Servicer, as the
case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE Certificateholders.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, to the extent required by this Agreement, all
documents and instruments coming into the possession of the Master Servicer from
time to time and shall account fully to the Trustee for any funds received or
otherwise collected thereby, including Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files and funds
collected or held by, or under the control of, the Master Servicer in respect of
any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, including any funds
on deposit in the Certificate Account, shall be held by the Master Servicer for
and on behalf of the Trustee and the Certificateholders and shall be and remain
the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement and the Primary Servicing Agreement. The Master
Servicer agrees that it shall not create, incur or subject any Servicer Mortgage
Files or Trustee Mortgage File or any funds that are deposited in the
Certificate Account or any Escrow Account, or any funds that otherwise are or
may become due or payable to the Trustee, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Servicer Mortgage
Files or Trustee Mortgage File or any funds collected on, or in connection with,
a Mortgage Loan, except, however, that the Master Servicer shall be entitled to
receive from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to the Master Servicing Fee, which shall be payable by the
Trust from amounts held in the Certificate Account or otherwise collected from
the Mortgage Loans as provided in Section 5.2. The Master Servicer shall be
required to pay to the Primary Servicer the Primary Servicing Fee, which shall
be payable by the Trust from amounts as provided in Section 5.1(c), unless
retained by the Primary Servicer from amounts transferred to the Master Servicer
in accordance with the terms of the Primary Servicing Agreement.
(b) Additional servicing compensation in the form of servicing fees,
default interest payable at a rate above the Mortgage Rate (net of any amount
used to pay Advance Interest), Modification Fees, forbearance fees, Late Fees
(net of Advance Interest) or other usual and customary charges and fees actually
received from Mortgagors shall be retained by the Master Servicer provided that
the Master Servicer shall be entitled to (i) receive 50% of assumption fees
collected on Mortgage Loans as provided in Section 8.7(a), (ii) 50% of any
Modification Fees as provided in Section 8.18 hereof; and (iii) any extension
fees collected from the related Mortgagor in connection with the extension of a
Mortgage Loan as provided in Section 8.18; provided the Master Servicer shall
not be entitled to any such fees in connection with any Specially Serviced
Mortgage Loan. If the Master Servicer collects any amount payable to the Special
Servicer hereunder in connection with a Mortgage Loan, REO Mortgage Loan or
Specially Serviced Mortgage Loan, the Master Servicer shall promptly remit such
amount to the Special Servicer as provided in Section 5.2. The Master Servicer
shall be required to pay all applicable expenses incurred by it in connection
with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee for each monthly period relating to each Determination Date shall be reduced
by an amount equal to the Compensating Interest (if any) relating to Mortgage
Loans which are not Specially Serviced Mortgage Loans for such Determination
Date.
(d) The Master Servicer shall also be entitled to additional servicing
compensation of (i) an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date, (ii)
interest or other income earned on deposits in the Certificate Account and the
Distribution Account (but only to the extent of the net investment earnings, if
any, with respect to each such account), and, (iii) to the extent not required
to be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall deliver
to the Trustee, no later than 12:00 noon, New York City time, the related Report
Date, the Master Servicer Remittance Report with respect to such Distribution
Date and (ii) the Master Servicer shall report to the Trustee on the related
Advance Report Date, the amount of P&I Advance to be made by the Master Servicer
on the related Master Servicer Remittance Date. The Special Servicer is required
to provide all information relating to Specially Serviced Mortgage Loans in
order for the Master Servicer to satisfy its duties in this Section 8.11.
(b) The Master Servicer shall deliver to the Trustee and the Special
Servicer within 30 days following each Distribution Date a statement setting
forth the status of the Certificate Account as of the close of business on such
Distribution Date showing, for the period covered by such statement, the
aggregate of deposits in or withdrawals from the Certificate Account.
(c) The Master Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information concerning
the Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) [Reserved].
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee pursuant to subsection (a) or subsection
(b) of this Section 8.11 to the Depositor, the Special Servicer, the Operating
Adviser and each Rating Agency, in each case upon request by such Person and
only to the extent such reports and information are not otherwise required to be
delivered to such Person under any provision of this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicer shall not have any obligation to deliver any statement,
notice or report that is then made available on the Master Servicer's internet
website (other than reports delivered to the Trustee), provided that it has
notified all parties entitled to delivery of such reports, by electronic mail or
other notice provided in this Agreement, to the effect that such statements,
notices or reports shall thereafter be made available on such website from time
to time.
(g) The Master Servicer shall deliver or cause to be delivered to the
Trustee the following CMSA Reports with respect to the Mortgage Loans (and, if
applicable, the related REO Properties) providing the required information as of
the related Determination Date upon the following schedule: (i) Comparative
Financial Status Report not later than each Report Date, commencing in November
2000; (ii) an Operating Statement Analysis Report and an NOI Adjustment
Worksheet in accordance with Section 8.14 of this Agreement; (iii) a Servicer
Watch List in accordance with and subject to the terms of Section 8.11(h) on
each Report Date, commencing in November 2000; (iv) a Loan Set-Up File (with
respect to the initial Distribution Date only) not later than the Report Date in
October 2000; (v) a Loan Periodic Update File not later than each Report Date
commencing in October 2000; (vi) a Property File not later than each Report
Date, commencing in December 2000; (vii) a Delinquent Loan Status Report on each
Report Date, commencing in November 2000; (viii) an Historical Loan Modification
Report not later than each Report Date, commencing in November 2000, (ix) an
Historical Liquidation Report not later than each Report Date, commencing in
November 2000; and (x) an REO Status Report on each Report Date, commencing in
November 2000. The information that pertains to Specially Serviced Mortgage
Loans and REO Properties reflected in such reports shall be based solely upon
the reports delivered by the Special Servicer to the Master Servicer in writing
and on a computer readable medium reasonably acceptable to the Master Servicer
and the Special Servicer on the Determination Date prior to the related Master
Servicer Remittance Date in the form required under Section 9.32. The Master
Servicer's responsibilities under this Section 8.11(g) with respect to REO Loans
and Specially Serviced Mortgage Loans shall be subject to the satisfaction of
the Special Servicer's obligations under Section 9.32.
(h) For each Distribution Date, the Master Servicer shall deliver to
the Trustee, not later than the related Report Date, a Servicer Watch List. The
Master Servicer shall list any Mortgage Loan on the Servicer Watch List as to
which any of the following events have occurred: (i) Mortgage Loans having a
current Debt Service Coverage Ratio that is 80% or less of the Debt Service
Coverage Ratio listed for such Mortgage Loan on Appendix II to the Prospectus
Supplement or having a Debt Service Coverage Ratio that is less than 1.00x, (ii)
Mortgage Loans as to which any required inspection of the related Mortgaged
Property conducted by the Master Servicer indicates a problem that the Master
Servicer determines can reasonably be expected to materially adversely affect
the cash flow generated by such Mortgaged Property, (iii) Mortgage Loans which
have come to the Master Servicer's attention in the performance of its duties
under this Agreement, in respect of which (A) the occupancy of the related
Mortgaged Property is under 80%, (B) any tenant occupying 25% or more of the
space in the related Mortgaged Property is the subject of bankruptcy or similar
proceedings if the Master Servicer has received written notice of such
proceedings or such proceedings have become general public knowledge or (C) any
Mortgagor or an affiliate thereof has been the subject of bankruptcy or similar
proceedings if the Master Servicer has received written notice of such
proceedings or such proceedings have become general public knowledge, (iv)
Mortgage Loans that are at least 30 days delinquent in payment and (v) Mortgage
Loans that are within 60 days of maturity.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
shall deliver to the Depositor and the Trustee on or before April 1 of each
year, commencing in April 2001, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of the activities of the Master Servicer
during the preceding calendar year or portion thereof and of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Master Servicer
shall forward a copy of each such statement to the Rating Agencies and the
Operating Adviser.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before April 1 of each year, commencing in April 2001, the Master Servicer
shall cause a firm of nationally recognized independent public accountants that
is a member of the American Institute of Certified Public Accountants to furnish
a statement to the Depositor, the Operating Adviser and the Trustee to the
effect that such firm has examined certain documents and records relating to the
servicing of the Mortgage Loans and that, on the basis of such examination
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers ("USAP") or the Audit Program for Mortgages
serviced for FHLMC (the "FHLMC Audit Program"), the servicing for the preceding
calendar year has been conducted in compliance with such agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the USAP or FHLMC Audit Program require it to report. The Master Servicer
shall forward a copy of each such report to the Rating Agencies.
SECTION 8.14 OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Not later than the Report Date occurring in July of each
year, the Master Servicer (in the case of Mortgage Loans that are not Specially
Serviced Mortgage Loans) or the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall deliver to the Trustee, the Placement Agent,
either Underwriter, the Rating Agencies, any Operating Adviser and the Depositor
an Operating Statement Analysis Report and an NOI Adjustment Worksheet for each
Mortgage Loan, based on the most recently available year-end financial
statements and most recently available rent rolls of each applicable Mortgagor
(to the extent provided to the Master Servicer by or on behalf of each
Mortgagor, or, in the case of Specially Serviced Mortgaged Loans, as provided to
the Special Servicer, which Special Servicer shall forward such information to
the Master Servicer on or before April 15 of each such year), containing such
information and analyses for each Mortgage Loan provided for in the form of
Operating Statement Analysis Report and an NOI Adjustment Worksheet as would
customarily be included in accordance with the Servicing Standard including,
without limitation, Debt Service Coverage Ratios and income. In addition, the
Master Servicer shall deliver to the Operating Adviser and upon request the
Master Servicer shall make available to the Rating Agencies, the Special
Servicer, and the Trustee, within 30 days following receipt thereof by the
Master Servicer, copies of any annual, monthly or quarterly financial statements
and rent rolls collected with respect to the Mortgaged Properties. As and to the
extent reasonably requested by the Special Servicer, the Master Servicer shall
make inquiry of any Mortgagor with respect to such information or as regards the
performance of the related Mortgaged Property in general. The Trustee shall
provide or make available electronically at no cost to such Certificateholder or
Certificate Owner, such Operating Statement Analysis Reports pursuant to Section
5.4(a) if the Operating Statement Analysis Report has been provided
electronically by the Master Servicer. If such Operating Statement Analysis
Reports are not provided to the Trustee electronically, the Trustee shall
deliver such reports by first class mail if requested by a Certificateholder or
Certificate Owner in writing.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Trustee shall
make available at its Corporate Trust Office, during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, the Seller, the Primary Servicer, any Placement Agent, each
Underwriter, each Rating Agency or the Depositor, originals or copies of, among
other things, the following items: (i) this Agreement and any amendments
thereto, (ii) all final and released Operating Statement Analysis Reports and
the Master Servicer Remittance Reports, (iii) all Officer's Certificates
(including Officer's Certificates evidencing any determination of Nonrecoverable
Advances) delivered to the Trustee since the Closing Date, (iv) all accountants'
reports delivered to the Trustee since the Closing Date, (v) the most recent
property Inspection Reports in the possession of the Trustee in respect of each
Mortgaged Property, (vi) the most recent Mortgaged Property annual operating
statement and rent roll, if any, collected by or on behalf of the Master
Servicer or the Special Servicer, (vii) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Master Servicer
and/or the Special Servicer, and (viii) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee to support the Master Servicer's
determination that any Advance was not or, if made, would not be, recoverable.
The Trustee will be permitted to require payment of a sum to be paid by the
requesting party (other than the Rating Agencies, the Trustee, the Placement
Agent or either Underwriter) sufficient to cover the reasonable costs and
expenses of making such information available.
(b) Subject to the restrictions described below, the Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Special
Servicer, the Primary Servicer, the Seller, the Placement Agent, either
Underwriter, the Operating Adviser, any Certificateholder or Certificate Owner,
upon reasonable notice and during normal business hours, reasonable access to
all information referred to in Section 8.15(a) and any additional relevant,
non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement, and access to Servicing
Officers of the Master Servicer responsible for its obligations hereunder.
Copies of information or access will be provided to Certificateholders and each
Certificate Owner providing satisfactory evidence of ownership of Certificates
or beneficial ownership of a Certificate, as the case may be. Copies (or
computer diskettes or other digital or electronic copies of such information if
reasonably available in lieu of paper copies) of any and all of the foregoing
items shall be made available by the Master Servicer upon request; provided,
however, that the Master Servicer shall be permitted to require payment by the
requesting party (other than the Depositor, the Trustee, the Special Servicer,
the Placement Agent, either Underwriter, or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Master
Servicer of providing access or copies (including electronic or digital copies)
of any such information requested in accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer to
confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report, included in any communication
from the Special Servicer or Mortgagor. Notwithstanding the above, the Master
Servicer shall not have any liability to the Depositor, the Trustee, the Fiscal
Agent, the Special Servicer, any Certificateholder, any Certificate Owner, the
Placement Agent, either Underwriter, any Rating Agency or any other Person to
whom it delivers information pursuant to this Section 8.15 or any other
provision of this Agreement for federal, state or other applicable securities
law violations relating to the disclosure of such information. In the event any
Person brings any claims relating to or arising from the foregoing against the
Master Servicer (or any employee, attorney, officer, director or agent thereof),
the Trust (from amounts held in any account or otherwise) shall hold harmless
and indemnify the Master Servicer from any loss or expense (including attorney
fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Special Servicer, the Primary Servicer, the
Seller, the Placement Agent, either Underwriter, any Rating Agency and/or the
Certificateholders or Certificate Owners. Any transmittal of information by the
Master Servicer to any Person other than the Trustee, the Master Servicer, the
Special Servicer, the Rating Agencies, the Operating Adviser, or the Depositor
may be accompanied by a letter from the Master Servicer containing the following
provision:
"By receiving the information set forth herein, you hereby acknowledge and
agree that the United States securities laws restrict any person who
possesses material, non-public information regarding the Trust which
issued Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN from purchasing or selling
such Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You also
acknowledge and agree that such information is being provided to you for
the purpose of, and such information may be used only in connection with,
evaluation by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial interest
therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates. The Master Servicer shall be entitled to satisfy its obligations to
deliver any report or other information to any Person by making such information
available or causing such information to be made available on the website of the
Master Servicer or, if such information is required to be made available
hereunder, on the website of the Trustee and shall be entitled to so make
information available to any Person entitled to such information, subject to, in
the case of a Certificateholder, receipt of a certification and agreement
otherwise described in Section 8.16.
(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Trustee for
delivery to any Holder thereof, any Certificate Owner therein and to any
prospective purchaser of the Certificates or beneficial interest therein
reasonably designated by the Trustee, upon the request of such
Certificateholder, such Certificate Owner or the Trustee, subject to this
Section 8.16 and the provisions of Section 8.15, any information prepared by the
Master Servicer that is required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Securities Act, including, without limitation, copies of the reports and
information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the Master Servicer chooses to deliver the information directly, the
Depositor, the Placement Agent, each Underwriter or the Trustee shall be
responsible for the physical delivery of the information requested pursuant to
this Section 8.16. As a condition to the Master Servicer making any report or
information available upon request to any Person other than the parties hereto,
the Master Servicer may require that the recipient of such information
acknowledge that the Master Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Placement Agent, either
Underwriter, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Placement Agent or each Underwriter) sufficient to cover the reasonable costs
and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans, every
calendar year beginning in 2001, or every second calendar year beginning in 2001
if the principal balance of the related Mortgage Loan is under $2 million);
provided that the Master Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that
has a Debt Service Coverage Ratio that falls below 1.0x. The Master Servicer
shall prepare an Inspection Report relating to each inspection. The Master
Servicer shall promptly forward the applicable Inspection Report to the Rating
Agencies, the Placement Agent, either Underwriter, the Depositor, the Trustee,
the Operating Adviser and the Special Servicer. The Special Servicer shall have
the right to inspect or cause to be inspected (at its own expense) every
calendar year any Mortgaged Property related to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, provided that the Special Servicer notifies
the Master Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing Standard
and this Section 8.18 may agree to any modification, waiver, amendment or
consent of or relating to (A) any term other than a Money Term of a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, or (B) any request by a
Mortgagor (other than the request of a Mortgagor with respect to a Money Term of
a Mortgage Loan that is not a Specially Serviced Mortgage Loan), provided that
such modification, waiver amendment or consent would not result in an Adverse
REMIC Event; and provided, further that, if the Master Servicer recommends to
approve such modification, waiver, amendment or consent (including but not
limited to the consents, release, modifications waivers, approvals and grants
described in Section 8.3(a)(E), (F), (G), (H), (I), (J) (but only if the related
lease is greater than the lease threshold set forth in the applicable loan
documents for the applicable Mortgage Loan) and (K) and in the first paragraph
of Section 8.7(e), each of which are specifically subject to this Section 8.18),
the Master Servicer shall provide to the Special Servicer a copy of the Master
Servicer's recommendation and the relevant information obtained or prepared by
the Master Servicer in connection therewith, and (A) the Special Servicer shall
have the right hereunder to grant or withhold consent to any such proposed
modification, waiver, amendment or consent, and such consent of the Special
Servicer shall not be unreasonably withheld, consistent with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer,
within five (5) Business Days following the Master Servicer's delivery of the
recommendation described above, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not enter into any such proposed modification, waiver, amendment
or consent unless it has received the written consent of the Special Servicer or
such consent has been deemed to have been granted as described above. In any
event, the Master Servicer shall promptly notify the Special Servicer of any
material modification, waiver, amendment or consent executed by the Master
Servicer pursuant to this Section 8.18(a)(i) and provide to the Special Servicer
a copy thereof. The Master Servicer shall be entitled to (as additional
servicing compensation ) 50% of any Modification Fee collected from a Mortgagor
in connection with any modification, waiver, amendment or consent in connection
with this Section 8.18 and the Special Servicer shall be entitled to (as
additional servicing compensation) 50% of any Modification Fee collected from a
Mortgagor in connection with any modification, waiver, amendment or consent in
connection with this Section 8.18.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to
Primary Servicer with respects to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests or Category 2 Requests (each, as defined in the Primary Servicing
Agreement), in which Primary Servicer has certain authority to evaluate and
process such requests in accordance with this Agreement, the applicable Primary
Servicing Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term or
provision that requires, or specifies a standard of, consent or approval of the
Mortgagee under the Mortgage Loan documents, the Primary Servicing Agreement
provides for Master Servicer's determination of materiality of such condition,
term or provision requiring approval or consent and the referral of such
condition, term or provision to a Special Servicer for consent in accordance
with the terms of the Primary Servicing Agreement upon a determination of
materiality. Special Servicer acknowledges such provisions. Nothing in this
Agreement, however, shall grant the Primary Servicer greater authority,
discretion or delegated rights over Post Closing Requests than are set forth in
the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders on a
net present value basis than liquidation of such Mortgage Loan and the Mortgagor
has obtained an executed written commitment (subject only to satisfaction of
conditions set forth therein) for refinancing of the Mortgage Loan or purchase
of the related Mortgaged Property. The Master Servicer shall process all such
extensions and shall be entitled to (as additional servicing compensation) 100%
any extension fees collected from a Mortgagor with respect to any such
extension.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to the Master Servicer a reasonable and
customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulations
Section 1.860G-2(b)), of the Mortgage Loan. The Master Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees) incurred by the
Master Servicer in connection with any request for a modification, waiver or
amendment. The Master Servicer agrees to use its best reasonable efforts in
accordance with the Servicing Standard to collect such costs, expenses and fees
from the Mortgagor, provided that, subject to the following sentence, the
failure or inability of the Mortgagor to pay any such costs and expenses shall
not impair the right of the Master Servicer to cause such costs and expenses
(but not including any modification fee), and interest thereon at the Advance
Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to the
extent not paid by the Mortgagor).
(c) The Master Servicer shall notify the Trustee of any modification,
waiver or amendment of any term of any Mortgage Loan permitted by it under this
Section and the date thereof, and shall deliver to the Trustee for deposit in
the related Mortgage File, an original counterpart of the agreement relating to
such modification, waiver or amendment, promptly following the execution thereof
except to the extent such documents have been submitted to the applicable
recording office, in which event the Master Servicer shall promptly deliver
copies of such documents to the Trustee. The Master Servicer shall not agree to
any modification, waiver, or amendment of any Money Term of a Mortgage Loan or
any term of a Specially Serviced Mortgage Loan.
(d) Notwithstanding the foregoing provisions of this Section 8.18, if
the Mortgage Loan documents relating to a Mortgage Loan provide that a Rating
Agency Confirmation is specifically required (and not merely an option of the
lender) as a condition to the taking of certain actions by the Master Servicer
or the Special Servicer (or the failure of the Master Servicer or the Special
Servicer to take such actions), then the Master Servicer or Special Servicer, as
applicable, shall not be permitted to waive such condition without a Rating
Agency Confirmation in respect of such waiver.
(e) Any provision of this Section 8.18 to the contrary notwithstanding,
none of the Special Servicer, Master Servicer or a Primary Servicer shall agree
to any consent, waiver or other modification of a Mortgage Loan that is not in
default or with respect to which default is not reasonably foreseeable, unless
it has been determined that such consent, waiver or other modification is not a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b) (and the Special Servicer, Master Servicer or
Primary Servicer, as applicable, may rely on an Opinion of Counsel in making
such determination, provided the cost of such Opinion of Counsel shall be an
expense of the applicable Mortgagor, to the extent not inconsistent with the
applicable loan documents, or, if inconsistent with the applicable loan
documents, the Trust).
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Rating Agencies and the Trustee within two Business Days after
becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan,
which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and, except for the Rating Agencies and the Trustee, shall be accompanied by a
copy of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Master Servicer shall not be required to produce any
ad hoc reports or incur any unusual expense or effort in connection therewith
and (ii) if the Master Servicer elects to provide such ad hoc reports, it may
require the Special Servicer to pay a reasonable fee to cover the costs of the
preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and covenants
with the Trustee, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing and in good
standing as a national banking association under the laws of the United States,
and shall be and thereafter remain, in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement, except where the failure to so qualify or
comply would not adversely affect the Master Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Master Servicer has the full power and authority to execute,
deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent and the Special Servicer,
evidences the valid and binding obligation of the Master Servicer enforceable
against the Master Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement will not (1) result in a breach of
any term or provision of its charter or by-laws or (2) conflict with, result in
a breach, violation or acceleration of, or result in a default under, the terms
of any other material agreement or instrument to which it is a party or by which
it may be bound, or any law, governmental rule, regulation, or judgment, decree
or order applicable to it of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it, which materially and adversely
affects its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to the Master Servicer's knowledge,
threatened, against it, that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer and the Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon discovery of such breach by any of the Trustee or the Master Servicer. The
Master Servicer shall give prompt notice to the Trustee, the Depositor, the
Primary Servicer and the Special Servicer of the occurrence, or the failure to
occur, of any event that, with notice or the passage of time or both, would
cause any representation or warranty in this Section to be untrue or inaccurate
in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Master Servicer
shall be a party, or any Person succeeding to the business of the Master
Servicer, shall be the successor of the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation. If the conditions to the provisions in the foregoing
sentence are not met, the Trustee may terminate the Master Servicer's servicing
of the Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor shall have assumed the Master
Servicer's responsibilities and obligations under this Agreement and Rating
Agency Confirmation shall have been obtained. Notice of such resignation shall
be given promptly by the Master Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee, provided that (i) a successor
servicer (w) is available, (x) has assets of at least $15,000,000, (y) is
willing to assume the obligations, responsibilities, and covenants to be
performed hereunder by the Master Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation to that herein
provided and (z) assumes all obligations under the Primary Servicing Agreement;
(ii) the Master Servicer bears all costs associated with its resignation and the
transfer of servicing; and (iii) Rating Agency Confirmation is obtained with
respect to such servicing transfer, as evidenced by a letter delivered to the
Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER. The
Master Servicer shall have the right without the prior written consent of the
Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or
delegate certain duties to other professionals such as attorneys and appraisers,
as an agent of the Master Servicer (as provided in Section 8.4) to perform and
carry out any duties, covenants or obligations to be performed and carried out
by the Master Servicer hereunder or (B) assign and delegate all of its duties
hereunder; provided, however, that with respect to clause (B), (i) the Master
Servicer gives the Depositor, the Special Servicer, the Primary Servicer and the
Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreement; (iii) the purchaser or transferee has assets in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation; and (v) the Depositor consents to such assignment and
delegation, such consent not be unreasonably withheld. In the case of any such
assignment and delegation in accordance with the requirements of subclause (B)
of this Section, the Master Servicer shall be released from its obligations
under this Agreement, except that the Master Servicer shall remain liable for
all liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint
the Primary Servicer and Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND OTHERS.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent, the
Placement Agent, either Underwriter or the Special Servicer for any action taken
or for refraining from the taking of any action in good faith, or using
reasonable business judgment, consistent with the Servicing Standard; provided
that this provision shall not protect the Master Servicer or any such person
against any breach of a representation or warranty contained herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the Special Servicer's servicing of Specially
Serviced Mortgage Loans as contemplated herein), or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action shall be expenses and costs of the Trust, and the
Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any error of judgement made in good
faith by any officer, unless it shall be proved that the Master Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Master
Servicer nor any director, officer, employee, agent or Affiliate, shall be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, Trustee or the Fiscal Agent in this Agreement.
The Trust shall indemnify and hold harmless the Master Servicer from any and all
claims, liabilities, costs, charges, fees or other expenses which relate to or
arise from any such breach of representation, warranty or covenant to the extent
the Master Servicer is unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in acting or
refraining from acting upon, any resolution, officer's certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, financial statement, agreement, appraisal, bond
or other document (in electronic or paper format) reasonably believed or in good
faith believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder, may rely,
and shall be protected in acting or refraining from acting upon any information
(financial or other), statement, certificate, document, agreement, covenant,
notice, request or other paper reasonably believed by it to be genuine and
provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified by the Trustee, the Fiscal Agent and
the Special Servicer, as the case may be, and held harmless against any loss,
liability or expense including reasonable attorneys' fees incurred in connection
with any legal action relating to the Trustee's, Fiscal Agent's or the Special
Servicer's, as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by reason of
negligent disregard of its respective duties hereunder, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Master Servicer's duties hereunder
or by reason of negligent disregard of the Master Servicer's obligations and
duties hereunder. The Master Servicer shall immediately notify the Trustee if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Master Servicer to indemnification hereunder, whereupon the
Trustee may assume the defense of any such claim (with counsel reasonably
satisfactory to the Master Servicer) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Trustee shall not affect any rights the
Master Servicer or the Trust may have to indemnification under this Agreement or
otherwise, unless the Trustee's defense of such claim is materially prejudiced
thereby. Such indemnity shall survive the termination of this Agreement or the
resignation or removal of the Master Servicer hereunder. Any payment hereunder
made by the Trustee or the Fiscal Agent pursuant to this paragraph to the Master
Servicer shall be paid from the Trustee's or Fiscal Agent's own funds, without
reimbursement from the Trust therefor except achieved through subrogation as
provided in this Agreement. Any expenses incurred or indemnification payments
made by the Trustee or the Fiscal Agent shall be reimbursed by the party so
paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee or the Fiscal Agent, as the case may be was not culpable
or found to have acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified by the Trust and held harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder. The Master Servicer shall promptly notify
the Trustee if a claim is made by a third party with respect to this Agreement
or the Mortgage Loans entitling the Master Servicer to indemnification
hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect of
such claim. Any failure to so notify the Trustee shall not affect any rights the
Master Servicer may have to indemnification under this Agreement or otherwise,
unless the Trust is prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement. The Trustee or the Master
Servicer shall promptly make from the Certificate Account any payments certified
by the Master Servicer to the Trustee as required to be made to the Master
Servicer pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Trust, the Depositor and any director, officer,
employee, agent or Controlling Persons thereof, and hold them harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that the Trustee, the Fiscal Agent, the Special Servicer, the Depositor and the
Trust may sustain arising from or as a result of the willful misfeasance, bad
faith or negligence in the performance of any of the Master Servicer's duties
hereunder or by reason of negligent disregard of the Master Servicer's
obligations and duties hereunder (including a breach of such obligations a
substantial motive of which is to obtain an economic advantage from being
released from such obligations), and if in any such situation the Master
Servicer is replaced, the parties hereto agree that the amount of such claims,
losses, penalties, fines, legal fees and related costs, judgments, and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the Fiscal Agent,
the Special Servicer or the Depositor, as applicable, shall immediately notify
the Master Servicer if a claim is made by any Person with respect to this
Agreement or the Mortgage Loans entitling the Trustee, the Fiscal Agent, the
Depositor, the Special Servicer or the Trust to indemnification under this
Section 8.25(b), whereupon the Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal
Agent, the Special Servicer or the Depositor, as applicable) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer
shall not affect any rights the Trustee, the Fiscal Agent, the Special Servicer,
the Depositor or the Trust may have to indemnification under this Agreement or
otherwise, unless the Master Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or termination of the Master
Servicer, the Fiscal Agent, the Special Servicer and the Trustee. Any expenses
incurred or indemnification payments made by the Master Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Master Servicer was not
culpable or that the Master Servicer did not act with willful misfeasance, bad
faith or negligence.
(c) The Master Servicer shall indemnify and hold harmless the Trust,
the Trustee and the Fiscal Agent, and each of their respective directors, each
of its officers, employees, agents and any Controlling Persons of the Fiscal
Agent or the Trustee from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Trust, the
Trustee or Fiscal Agent, or any such director, officer, employees, agents or
such Controlling Persons may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement of a material fact contained in the Prospectus
Supplement or Prospectus or in the Private Placement Memorandum, or arises out
of, or is based upon the omission to state therein a material fact necessary to
make the statements therein not misleading, and shall reimburse the Trust,
Trustee or Fiscal Agent or any such director, officer, employee, agent or
Controlling Persons for any legal and other expenses reasonably incurred by the
Trust, the Trustee, the Fiscal Agent or any such director, officer, employee,
agent or Controlling Persons in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action, but in each
case only to the extent that the untrue statement or omission was made in
reliance upon and in conformity with written information concerning the Master
Servicer furnished to the Depositor by or on behalf of the Master Servicer
specifically for inclusion therein. The Trustee or the Fiscal Agent, as
applicable, shall immediately notify the Master Servicer if a claim is made by a
third party with respect to this Section 8.25(c) entitling the Trust or the
Trustee or the Fiscal Agent, as the case may be, or any of its directors,
officers, employees, agents or Controlling Persons, as the case may be, to
indemnification hereunder, whereupon the Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Fiscal
Agent or the Trustee, as the case may be) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer shall not affect any rights
the Trust, the Fiscal Agent and the Trustee may have to indemnification under
this Section 8.25(c), unless the Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Master Servicer, the Fiscal Agent and the Trustee.
(d) The parties expressly agree that the only written information
concerning the Master Servicer furnished by or on behalf of the Master Servicer
for inclusion in the Prospectus Supplement, the Private Placement Memorandum and
the Prospectus is the information set forth under the paragraphs under the
caption "SERVICING OF THE MORTGAGE LOANS -- The Master Servicer, Primary
Servicer and Special Servicer" of the Prospectus Supplement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent shall reasonably cooperate with the
Depositor in connection with the Depositor's satisfying the reporting
requirements in respect of the Trust under the Exchange Act. The Trustee shall
prepare and file on behalf of the Depositor periodic reports with respect to the
Trust as required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission thereunder; provided that such items shall
have been received by the Trustee (to the extent not generated by the Trustee)
in the format required for electronic filing via the EDGAR system; and provided,
further, that any such items that are required to be delivered by the Master
Servicer, the Special Servicer, the Depositor or any other Person to the Trustee
shall be so delivered in the format required for electronic filing via the EDGAR
system (in addition to any other required format). The Trustee shall have no
responsibility to file any such items that have not been received in such
EDGAR-compatible format nor shall it have any responsibility to convert any
items to such format. The Depositor shall seek from the Securities and Exchange
Commission a no-action letter or other exemptive relief relating to reduced
reporting requirements in respect of the Trust under the Exchange Act and shall
provide a copy of any such documents to the Trustee and the Trustee shall, in
accordance with and to the extent permitted by applicable law, file a Form 15
relating to the automatic termination of reporting in respect of the Trust under
the Exchange Act.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master Servicer
shall act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of the two
REMIC Pools as REMICs under the Code. The Master Servicer shall take no action
or cause either REMIC Pool to take any action that could (i) endanger the status
of either REMIC Pool as a REMIC under the Code or (ii) result in the imposition
of a tax upon either REMIC Pool (including, but not limited to, the tax on
prohibited transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) unless the Trustee shall have
received a Nondisqualification Opinion (at the expense of the party seeking to
take such action) to the effect that the contemplated action will not endanger
such status or result in the imposition of such tax. The Master Servicer shall
comply with the provisions of Article XII hereof.
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Master Servicer created
hereby (other than the obligation of the Master Servicer to make payments to the
Trustee as set forth in Section 8.29 and the obligations of the Master Servicer
to the Trustee, Fiscal Agent, the Special Servicer and the Trust) shall
terminate (i) on the date which is the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining outstanding (and final
distribution to the Certificateholders) or (B) the disposition of all REO
Property (and final distribution to the Certificateholders), (ii) if an Event of
Default described in clauses 8.28(b)(iii), (iv), (v), (vi) or (vii) has
occurred, 60 days following the date on which the Trustee or Depositor gives
written notice to the Master Servicer that the Master Servicer is terminated or
(iii) if an Event of Default described in clauses 8.28(b)(i), (ii), (viii), (ix)
or (x) has occurred, immediately upon the date on which the Trustee or the
Depositor gives written notice to the Master Servicer that the Master Servicer
is terminated. After any Event of Default, the Trustee (i) may elect to
terminate the Master Servicer by providing such notice, and (ii) shall provide
such notice if holders of Certificates representing more than 25% of the
Aggregate Certificate Balance of all Certificates so direct the Trustee.
(b) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer (a) to remit to the Trustee any
payment required to be remitted by the Master Servicer under the terms of this
Agreement, including any required P&I Advances; or (b) to make any Servicing
Advance that is required to be made by the Master Servicer hereunder and such
failure is not remedied within five (5) Business Days following notice of such
failure from the Trustee; or
(ii) any failure by the Master Servicer to make a required deposit to
the Certificate Account which continues unremedied for one Business Day
following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the duties, covenants or agreements
on the part of the Master 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
Master Servicer by the Depositor or the Trustee; provided, however, that if the
Master Servicer certifies to the Trustee and the Depositor that the Master
Servicer is in good faith attempting to remedy such failure, such cure period
will be extended to the extent necessary to permit the Master Servicer to cure
such failure; provided, further that such cure period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained in
Section 8.20 hereof that materially and adversely affects the interest of any
holder of any Class of Certificates and that continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the same to
be remedied, shall have been given to the Master Servicer by the Depositor or
the Trustee, provided, however, that if the Master Servicer certifies to the
Trustee and the Depositor that the Master Servicer is in good faith attempting
to remedy such breach, such cure period will be extended to the extent necessary
to permit the Master Servicer to cure such breach; provided, further that such
cure period may not exceed 90 days; or
(v) the Trustee shall receive notice from Moody's to the effect that
the continuation of the Master Servicer in such capacity has resulted or would
result in the downgrade, qualification or withdrawal of any rating then assigned
by Moody's to any Class of Certificates; or
(vi) [Reserved]; or
(vii) the Master Servicer is no longer on the approved list of
commercial mortgage loan master servicers maintained by S&P; or
(viii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(ix) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(x) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing.
(c) Notwithstanding the foregoing, if the Event of Default of the
Master Servicer occurs primarily by reason of the occurrence of a "Primary
Servicing Default" (as hereinafter defined) and the Trustee (or the Trustee at
the direction of the Certificateholders pursuant to Section 8.28 hereof) elects
to terminate the Master Servicer, then Wells Fargo Bank, National Association
shall have the right to elect that the successor Master Servicer, upon its
succession, enter into a primary servicing agreement with Wells Fargo Bank,
National Association with respect to all Mortgage Loans so long as Wells Fargo
Bank, National Association is on the approved list of commercial mortgage loan
servicers maintained by S&P; such agreement shall be substantially in the form
of Exhibit G hereto (but as if Wells Fargo Bank, National Association were the
Primary Servicer thereunder and with applicable servicing fees and excess fees
as specified on the Mortgage Loan Schedule), with respect to the Mortgage Loans;
and thereupon Wells Fargo Bank, National Association shall be deemed to have
been granted the rights and deemed to have assumed the obligations granted to or
imposed on "Primary Servicer" hereunder. For purposes of the preceding sentence,
a "Primary Servicing Default" means an "event of default" of the Primary
Servicer (other than Wells Fargo Bank, National Association) under the Primary
Servicing Agreement.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by the Master Servicer to the Trustee shall be made, shall be given
promptly in writing by the Master Servicer to the Trustee and the Trustee no
later than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such
final distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Trustee the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust and the Fiscal
Agent as provided herein) shall terminate and the Master Servicer shall transfer
to the Trustee the amounts remaining in the Certificate Account after making the
withdrawals permitted to be made pursuant to Section 5.2 and shall thereafter
terminate the Certificate Account and any other account or fund maintained with
respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the date
on which a written notice of termination is given to the Master Servicer
pursuant to clause (iii) of Section 8.28(a) all authority, power and rights of
the Master Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate (except for any rights relating to unpaid
servicing compensation or unreimbursed Advances); provided that in no event
shall the termination of the Master Servicer be effective until a successor
servicer shall have succeeded the Master Servicer as successor servicer,
notified the Master Servicer of such designation, and such successor servicer
shall have assumed the Master Servicer's obligations and responsibilities
hereunder and under the Primary Servicing Agreement, as set forth in an
agreement substantially in the form hereof, with respect to the Mortgage Loans.
Except as provided in the next sentence, the Trustee may not succeed the Master
Servicer as servicer until and unless it has satisfied the provisions that would
apply to a Person succeeding to the business of the Master Servicer pursuant to
Section 8.22(b) hereof. Notwithstanding the foregoing sentence, in the event
that the Master Servicer is terminated as a result of an event described in
Section 8.28(b)(viii), 8.28(b)(ix) or 8.28(b)(x), the Trustee shall act as
successor servicer immediately upon delivery of a notice of termination to the
Master Servicer and shall use commercially reasonable efforts within 90 days of
assuming the duties of the Servicer, either to satisfy the conditions of Section
8.22(b) hereof or to transfer the duties of the Master Servicer to a successor
servicer who has satisfied such conditions. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The Master Servicer agrees to cooperate with the Trustee and the
Fiscal Agent in effecting the termination of the Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying Mortgagors of the assignment of the servicing function and
providing the Trustee all documents and records in electronic or other form
reasonably requested by it to enable the successor servicer designated by the
Trustee to assume the Master Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Master Servicer in the
Certificate Account and any other account or fund maintained or thereafter
received with respect to the Mortgage Loans.
(c) If the Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (v), (vi) or (vii) of Section 8.28(b), and if the
Master Servicer provides the Trustee with the appropriate "request for proposal"
materials within five Business Days after receipt of such written notice of
termination, then the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the Master Servicer) solicit good faith bids for
the rights to service the Mortgage Loans under this Agreement from at least
three Qualified Bidders or, if three Qualified Bidders cannot be located, then
from as many persons as the Trustee can determine are Qualified Bidders. At the
Trustee's request, the Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids. In no event shall the Trustee be
responsible if less than three Qualified Bidders submit bids for the right to
service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreement, not later than 30 days after termination of the Master
Servicer hereunder. The Trustee shall select the Qualified Bidder with the
highest cash bid (or such other Qualified Bidder as the Master Servicer may
direct) (the "Successful Bidder") to act as successor Master Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof, and in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account specified
by the Trustee no later than 10:00 a.m. New York City time on the date specified
for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 30 days after the termination of the Master
Servicer hereunder or no Successful Bidder was identified within such 30-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section 8.29, the
successor master servicer must assume all of the obligations of the terminated
Master Servicer under the Primary Servicing Agreement as a condition precedent
to its becoming Master Servicer hereunder.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) For and on behalf of the Certificateholders and the Trustee, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the provisions of this Agreement
and the Servicing Standard.
(b) The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer within two Business Days (or sooner, if required by the Servicing
Standard) after becoming aware that a Mortgage Loan has become a Rehabilitated
Mortgage Loan, which notice shall identify the applicable Mortgage Loan. Upon
the receipt of such notice by the Master Servicer and the Trustee, such Mortgage
Loan shall become a Rehabilitated Mortgage Loan and will be serviced by the
Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to a
Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer shall mark its records for such Mortgage Loan to cause any
monthly statements for amounts due on such Mortgage Loan to be sent thereafter
to the Special Servicer rather than the related Mortgagor. Upon receipt of any
such monthly statement, the Special Servicer shall, within two Business Days,
advise the Master Servicer of any changes to be made, and return the monthly
statement to the Master Servicer. The Master Servicer shall thereafter promptly
send the corrected monthly statement to the Mortgagor. If a Mortgage Loan
becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the
monthly statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Property) shall be deposited in the Certificate Account. The Master Servicer
shall within three Business Days after receipt of any such payment, notify the
Special Servicer of the receipt of such payment and the amount thereof. The
Special Servicer shall, within one Business Day thereafter, instruct the Master
Servicer in writing how to apply such payment.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY OF
SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in effect
a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.
The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond
shall be issued by a Qualified Insurer (unless the Special Servicer self insures
as provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Special Servicer is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "Baa1" as rated by Moody's and
"BBB" as rated by S&P, the Special Servicer may self-insure for the Servicer
Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right to
use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer and Trustee of the appointment of any
Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement, the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans and, to
the extent consistent with this Agreement, Mortgage Loans which the Master
Servicer may perform as set forth in Section 8.3(a), including (i) to execute
and deliver, on behalf of itself or the Trust, 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 Specially Serviced Mortgage
Loans and with respect to the related REO Properties and (ii) to effectuate
foreclosure or other conversion of the ownership of any REO Property securing a
Mortgage Loan. The Trustee shall execute on the Closing Date a Power of Attorney
in the form of Exhibit S-2 hereto and shall furnish the Special Servicer from
time to time, upon request, with any additional powers of attorney of the Trust,
empowering the Special Servicer to take such actions as it determines to be
reasonably necessary to comply with its servicing, administrative and management
duties hereunder, and the Trustee shall execute and deliver or cause to be
executed and delivered such other documents as a Special Servicing Officer may
request, that are necessary or appropriate to enable the Special Servicer to
service, administer and manage the Specially Serviced Mortgage Loans and carry
out its duties hereunder, in each case as the Special Servicer determines is in
accordance with the Servicing Standard and the terms of this Agreement;
provided, that, prior to initiating any proceedings in any court of law or
equity (but not defending any proceedings in any court of law or equity) or
instituting any proceeding to foreclose on any Mortgaged Property in the name of
the Trust in any state, the Special Servicer shall notify the Trustee in writing
and not institute or initiate any such proceedings for a period of five Business
Days from the date of its delivery of such notice to the Trustee, unless the
Special Servicer reasonably believes that such action should be taken in less
than five Business Days to preserve the property of the Trust for the benefit of
Certificateholders, and the Trustee may within five Business Days of its receipt
of such notice advise the Special Servicer that it has received an Opinion of
Counsel (the cost of which shall be an expense of the Trust) from an attorney
duly licensed to practice law in the state where the related Mortgaged Property
or REO Property is located, that it is likely that the laws of the state in
which said action is to be taken either prohibit such action if taken in the
name of the Trust or that the Trust would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name;
provided, further, that the Special Servicer shall not be liable to the extent
that it relies on the advice provided in such Opinion of Counsel. Upon receipt
of any such advice from the Trustee, the Special Servicer shall take such action
in the name of such Person or Persons, in trust for the Trust, as shall be
consistent with the Opinion of Counsel obtained by the Trustee. Such Person or
Persons shall acknowledge in writing that such action is being taken by the
Special Servicer in the name of the Trust. In the performance of its duties
hereunder, the Special Servicer shall be an independent contractor and shall
not, except in those instances where it is, after notice to the Trustee as
provided above, taking action in the name of the Trust, be deemed to be the
agent of the Trust. The Special Servicer shall indemnify the Trustee for any
loss, liability or reasonable expense (including attorneys' fees) incurred by
the Trustee or any director, officer, employee, agent or Controlling Persons of
it or its affiliates in connection with any negligent or intentional misuse of
the foregoing powers of attorney furnished to the Special Servicer by the
Trustee. Such indemnification shall survive the resignation or termination of
the Special Servicer hereunder, the resignation or termination of the Trustee
and the termination of this Agreement. The Special Servicer shall not have any
responsibility or liability for any act or omission of the Trustee, the Master
Servicer or the Depositor that is not attributable to the failure of the Special
Servicer to perform its obligations hereunder. The Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2001); provided
further that the Special Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that is
delinquent for sixty (60) days in the payment of any amounts due under such
Mortgage Loan. The Special Servicer shall provide to the Master Servicer and the
Operating Adviser copies of the Inspection Reports relating to such inspections
as soon as practicable after the completion of any inspection.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special Servicer shall
have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or may
at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan may not be
assumed without the consent of the related mortgagee in connection with any such
sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Mortgage Loan is a Review Threshold Loan, then prior to waiving the
effect of such provision, the Special Servicer shall obtain Rating Agency
Confirmation regarding such waiver. In connection with the request for such
consent, the Special Servicer shall prepare and deliver to Moody's and S&P a
memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall also prepare and provide Moody's and S&P with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Mortgage Loans below the Review Threshold, but for which
the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a "due-on-sale"
clause, the Special Servicer shall have the rights and duties set forth in
Section 8.7(b).
After notice to the Operating Adviser, the Special Servicer is also
authorized to take or enter into an assignment and assumption agreement from or
with the Person to whom such property has been or is about to be conveyed,
and/or to release the original Mortgagor from liability upon the Specially
Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon;
provided, that except as otherwise permitted by Section 9.5(c), any such
assignment and assumption or substitution agreement shall contain no terms that
could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall otherwise enter
into any assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee 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.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
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.
(c) Subject to the Servicing Standard and Section 9.34, and the rights
and duties of the Master Servicer under Section 8.18, the Special Servicer may
enter into any modification, waiver or amendment (including, without limitation,
the substitution or release of collateral or the pledge of additional
collateral) of any Monetary Term of any Specially Serviced Mortgage Loan or the
terms of any Specially Serviced Mortgage Loan, including any modification,
waiver or amendment to (i) reduce the amounts owing under any Specially Serviced
Mortgage Loan by forgiving principal, accrued interest and/or any Prepayment
Premium, (ii) reduce the amount of the Scheduled Payment on any Specially
Serviced Mortgage Loan, including by way of a reduction in the related Mortgage
Rate, (iii) forbear in the enforcement of any right granted under any Mortgage
Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the
Maturity Date of any Specially Serviced Mortgage Loan and/or (v) accept a
principal prepayment on any Specially Serviced Mortgage Loan during any period
during which voluntary Principal Prepayments are prohibited, provided, in the
case of any such modification, waiver or amendment, that (A) the related
Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or,
in the reasonable judgment of the Special Servicer, such default is reasonably
foreseeable, (B) in the reasonable judgment of the Special Servicer, such
modification, waiver or amendment would increase the recovery on the Specially
Serviced Mortgage Loan to Certificateholders on a net present value basis (the
relevant discounting of amounts that will be distributable to Certificateholders
to be performed at related Mortgage Rate), (C) such modification, waiver or
amendment would not cause an Adverse REMIC Event to occur, and (D) if notice to
the Operating Adviser of such modification, waiver or amendment is required
pursuant to Section 9.39, the Special Servicer has made such notice.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Final Rated Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage beyond a date that is twenty (20) years prior
to the expiration of the term of such ground lease.
The determination of the Special Servicer contemplated by clause (B) of
the proviso to the first paragraph of this Section 9.5(c) shall be evidenced by
an Officer's Certificate certifying the information in the proviso to the first
paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor to
substitute collateral for all or any portion of a Mortgaged Property pursuant to
Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), if the security interest of the Trust in such collateral would
be perfected by possession, or if such collateral requires special care or
protection, then prior to agreeing to such substitution or addition of
collateral, the Special Servicer shall make arrangements for such possession,
care or protection, and prior to agreeing to such substitution or addition of
collateral (or such arrangement for possession, care or protection) shall obtain
the prior written consent of the Trustee with respect thereto (which consent
shall not be unreasonably withheld, delayed or conditioned); provided, however,
that the Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or incur
any additional expense; provided, further, for any Review Threshold Loan,
Special Servicer shall obtain Rating Agency Confirmation of any substitution of
collateral for all or any portion of a Mortgaged Property pursuant to Section
9.5(c) or any pledge of additional collateral for such Review Threshold Loan
pursuant to Section 9.5(c).
(e) The Special Servicer will promptly deliver to the Master Servicer,
the Operating Adviser, the Trustee and the Rating Agencies a notice, specifying
any such assignments and assumptions, modifications, waivers or amendments, such
notice identifying the affected Specially Serviced Mortgage Loan. Such notice
shall be delivered to the Trustee and shall set forth the reasons for such
waiver, modification, or amendment (including, but not limited to, information
such as related income and expense statements, rent rolls, occupancy status,
property inspections, and an internal or external appraisal performed in
accordance with MAI standards and methodologies (and, if done externally, the
cost of such appraisal shall be recoverable as a Servicing Advance subject to
the provisions of Section 4.4 hereof)). The Special Servicer shall also deliver
to the Trustee (or the Custodian), for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment promptly following the execution thereof.
(f) No fee described in this Section shall be collected by the Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulation ss. 1.860G-2(b). Subject to the foregoing, the
Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Mortgage Loan from the Mortgagor.
The inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the Master
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section 8.7(a)
and 100% of any assumption fee paid by the related Mortgagor in connection with
an assignment and assumption executed pursuant to Section 8.7(b).
(h) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be permitted to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
(i) If any Specially Serviced Mortgage Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien or
other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any such
additional lien or other encumbrance on the related Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust, the
Special Servicer, on behalf of the Trustee as the mortgagee of record,
shall exercise (or, subject to Section 9.5, waive its right to
exercise) any right it may have with respect to such Mortgage Loan (x)
to accelerate the payments thereon, or (y) to withhold its consent to
the creation of any such additional lien or other encumbrance, in a
manner consistent with the Servicing Standard. Prior to waiving the
effect of such provision, the Special Servicer shall obtain Rating
Agency Confirmation regarding such waiver.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
the Special Servicer will immediately notify the Master Servicer. The Special
Servicer shall determine, in accordance with the Servicing Standard, whether an
instrument of satisfaction shall be delivered and, if the Special Servicer
determines that such instrument should be delivered, the Special Servicer shall
deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to the
Master Servicer to request any documents and instruments in the possession of
the Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the Servicing Standard,
the Special Servicer shall notify, in writing, each Mortgagor under each
Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the Special Servicer in respect of any
Specially Serviced Mortgage Loan or any REO Property or which otherwise are
collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any
REO Property shall be transmitted to the Master Servicer within one Business Day
of receipt to the Certificate Account, except that if such amounts relate to REO
Income, they shall be deposited in the REO Account. The Special Servicer shall
provide access to information and documentation regarding the Specially Serviced
Mortgage Loans to the Trustee, the Master Servicer, the Fiscal Agent, the
Operating Adviser and their respective agents and accountants at any time upon
reasonable written request and during normal business hours, provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided further that the Trustee shall be entitled to receive from the Special
Servicer all such information as the Trustee shall reasonably require to perform
its duties hereunder. In fulfilling such a request, the Special Servicer shall
not be responsible for determining whether such information is sufficient for
the Trustee's, the Master Servicer's, the Fiscal Agent's or the Operating
Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust owns the
Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust.
(c) The Special Servicer also agrees that it shall not create, incur or
subject any Specially Serviced Mortgage Loans, or any funds that are required to
be deposited in any REO Account to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Specially Serviced Mortgage
Loan or any funds, collected on, or in connection with, a Specially Serviced
Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
(a) Special Servicer hereby represents, warrants to and covenants with
the Trustee (in its capacity as Trustee of the Trust) that as of the date
hereof:
(i) the Special Servicer is duly organized, validly existing and in
good standing as a limited liability company under the laws of the State of
Delaware and shall be and thereafter remain in compliance with the laws of each
state in which any Mortgaged Property (including any REO Property) which is, or
is related to, a Specially Serviced Mortgage Loan is located to the extent
necessary to perform its obligations under this Agreement, except where the
failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with the
terms of this Agreement;
(ii) the Special Servicer has the full power and authority to execute,
deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement;
and this Agreement, assuming the due authorization, execution and delivery
thereof by the Depositor, the Trustee, the Master Servicer and the Fiscal Agent,
evidences the valid and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
receivership, moratorium and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement will not (1) result in a breach of
any term or provision of its charter or by-laws or (2) conflict with, result in
a breach, violation or acceleration of, or result in a default under, the terms
of any other material agreement or instrument to which it is a party or by which
it may be bound, or any law, governmental rule, regulation, or judgment, decree
or order applicable to it of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it, which materially and adversely
affects its ability to perform its obligations under this Agreement.
(iv) no litigation is pending or, to the Special Servicer's knowledge,
threatened, against it, that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it, or compliance by it with, this Agreement, or the consummation
of the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same or will obtain the
same prior to the time necessary to perform its obligations under this
Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Special Servicer
contemplated by this Agreement are in the ordinary course of business of the
Special Servicer and the Special Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and warranties set forth
in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon discovery of such breach by any of the Trustee, the Master Servicer, the
Fiscal Agent or the Special Servicer. The Special Servicer shall give prompt
notice to the Trustee, the Fiscal Agent, the Depositor, the Operating Adviser
and the Master Servicer of the occurrence, or the failure to occur, of any event
that, with notice, or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL LIABILITY
INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with the Servicing
Standard, the Special Servicer shall maintain with a Qualified Insurer a
Standard Hazard Insurance Policy which does not provide for reduction due to
depreciation in an amount which is not less than the full replacement cost of
the improvements of such REO Property or in an amount not less than the unpaid
principal balance plus all unpaid interest and the cumulative amount of
Servicing Advances (plus Advance Interest) made with respect to such Mortgage
Loan of such Mortgage Loan, whichever is less, but, in any event, in an amount
sufficient to avoid the application of any co-insurance clause. If the
improvements to the Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available), the Special Servicer
shall maintain a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in an amount representing
coverage equal to the lesser of the then outstanding Principal Balance of the
Specially Serviced Mortgage Loan and unpaid Advances (plus Advance Interest) and
the maximum insurance coverage required under such current guidelines. It is
understood and agreed that the Special Servicer has no obligation to obtain
earthquake or other additional insurance on REO Property, except as required by
law and, nevertheless, at its sole option and at the Trust's expense, it (if
available at commercially reasonable rates) may obtain such earthquake
insurance. The Special Servicer shall use its reasonable efforts, consistent
with the Servicing Standard, to obtain a comprehensive general liability
insurance policy for all REO Properties. The Special Servicer shall, to the
extent available at commercially reasonable rates (as determined by the Special
Servicer in accordance with the Servicing Standard) and to the extent consistent
with the Servicing Standard, use its reasonable efforts to maintain a Rent Loss
Policy covering revenues for a period of at least twelve months and a
comprehensive general liability policy with coverage comparable to prudent
lending requirements in an amount not less than $1 million per occurrence. All
applicable policies required to be maintained by the Special Servicer pursuant
to this Section 9.9(a) shall name the Trustee as loss payee and be endorsed with
a standard mortgagee clause. The costs of such insurance shall be a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance
policies maintained pursuant to this Section 9.9 (other than amounts to be
applied to the restoration or repair of the REO Property) shall be deposited
into the applicable REO Account. Any cost incurred in maintaining the insurance
required hereby for any REO Property shall be a Servicing Advance, subject to
the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard. The Special Servicer shall notify the Trustee of any such
determination.
The Special Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 9.9 either (i) if the Special Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer with a
minimum claims paying ability rating of at least "A2" by Moody's and "A" by S&P
or otherwise approved by the Rating Agencies or (ii) if the Special Servicer,
provided that the rating of such Person's long-term debt is not less than "A2"
by Moody's and "A" by S&P self-insures for its obligations as set forth in the
first paragraph of this Section 9.9. In the event that the Special Servicer
shall cause any Mortgage Loan to be covered by such a master force placed or
blanket insurance policy, the incremental cost of such insurance allocable to
such Mortgage Loan (i.e., other than any minimum or standby premium payable for
such policy whether or not any Mortgage Loan is then covered thereby), if not
borne by the related Mortgagor, shall be paid by the Special Servicer as a
Servicing Advance, subject to the provisions of Section 4.4 hereof. If such
policy contains a deductible clause, the Special Servicer shall, if there shall
not have been maintained on the related Mortgaged Property a policy complying
with this Section 9.9 and there shall have been a loss that would have been
covered by such policy, deposit in the Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Special Servicer agrees to present, on its behalf and on
behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special Servicer
shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and
(iii) the Work-Out Fee. Such amounts, if any, collected by the Special Servicer
from the related Mortgagor shall be transferred by the Special Servicer to the
Master Servicer within one Business Day of receipt thereof, and deposited by the
Master Servicer in the Certificate Account. The Special Servicer shall be
entitled to receive a Liquidation Fee from the Liquidation Proceeds received in
connection with a Final Disposition of a Specially Serviced Mortgage Loan or REO
Property. Notwithstanding any other provision herein, the Special Servicing Fee
for each monthly period relating to each Determination Date shall be reduced by
an amount equal to the Compensating Interest, if any, relating to Specially
Serviced Mortgage Loans which have received voluntary Principal Prepayments not
from Liquidation Proceeds or from modifications of Specially Serviced Mortgage
Loans for such Determination Date. The Special Servicer shall also be entitled
to additional servicing compensation of an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to Mortgage Loans which are
Specially Serviced Mortgage Loans which have received voluntary Principal
Prepayments not from Liquidation Proceeds or from modifications of Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date. If the
Special Servicer resigns or is terminated for any reason, it shall retain the
right to receive any Work-Out Fees payable on Mortgage Loans that became
Rehabilitated Mortgage Loans while it acted as Special Servicer and remained
Rehabilitated Mortgage Loans at the time of such resignation or termination for
so long as such Mortgage Loan remains a Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master Servicer
to withdraw from the Certificate Account the Special Servicer Compensation in
respect of each such Mortgage Loan in the time and manner set forth in Section
5.2 of this Agreement. The Special Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as expressly provided
in this Agreement.
(c) Additional Special Servicer compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees (net of Advance
Interest) or other usual and customary charges and fees actually received from
the Mortgagor in connection with any Specially Serviced Mortgage Loan shall be
retained by the Special Servicer, to the extent not required to be deposited in
the Certificate Account pursuant to the terms of this Agreement. The Special
Servicer shall also be permitted to receive 50% of all assumption fees collected
with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(a), 100% of all assumption fees collected with respect
to Mortgage Loans that are not Specially Serviced Mortgage Loans as provided in
Section 8.7(b) and 50% of all Modification Fees collected with respect to
Mortgage Loans that are not Specially Serviced Mortgage Loans as provided in
Section 8.18. To the extent any component of Special Servicer Compensation is in
respect of amounts usually and customarily paid by Mortgagors, the Special
Servicer shall use reasonable good faith efforts to collect such amounts from
the related Mortgagor, and to the extent so collected, in full or in part, the
Special Servicer shall not be entitled to compensation for the portion so
collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard and
subject to Section 9.4(a), shall use its reasonable efforts to foreclose upon,
repossess or otherwise comparably convert the ownership of Mortgaged Properties
securing such of the Specially Serviced Mortgage Loans as come into and continue
in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments of such Mortgage Loan, the sale such Mortgage
Loan in accordance with this Agreement or the modification of such Mortgage Loan
in accordance with this Agreement. In connection with such foreclosure or other
conversion of ownership, the Special Servicer shall follow the Servicing
Standard. The foregoing is subject to the proviso that the Special Servicer
shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses unless the Special Servicer shall in its sole discretion
determine, consistent with the Servicing Standard, (i) that such foreclosure or
restoration will increase on a net present value basis the Liquidation Proceeds
of the Specially Serviced Mortgage Loan to the Trust and (ii) that such
Liquidation Expenses will be recoverable from Liquidation Proceeds, and any such
Servicing Advance by the Master Servicer or the Trustee or the Fiscal Agent
shall be subject to the determination(s) of recoverability contemplated by
Section 4.4.
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special Servicer;
or
(ii) the Special Servicer shall have received a Nondisqualification
Opinion (the cost of which shall be reimbursed by the Trust) to the effect that
the holding of such personal property by any REMIC will not cause the imposition
of a tax on either REMIC Pool under the Code or cause either REMIC Pool to fail
to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, 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 Trust would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA,
or any applicable comparable federal, state or local law, or a "discharger" or
"responsible party" thereunder, unless the Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or affiliate
of the Master Servicer or the Special Servicer) who regularly conducts
environmental site assessments in accordance with the standards of FNMA in the
case of multi-family mortgage loans and customary servicing practices in the
case of commercial loans for environmental assessments, which report shall be
delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery to the
Holders on a net present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present or threatened at
such Mortgaged Property relating to the use, management, disposal or release of
any hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing, monitoring, removal,
clean-up or remediation could be required under any federal, state or local law
or regulation, or that, if any such materials are present for which such action
could be required, after consultation with an environmental expert taking such
actions with respect to the affected Mortgaged Property is reasonably likely to
produce a greater recovery to the Holders on a net present value basis than not
taking such actions (after taking into account the projected costs of such
actions); provided, however, that such compliance pursuant to clause (i) above
or the taking of such action pursuant to this clause (ii) shall only be required
to the extent that the cost thereof is a Servicing Advance of the Master
Servicer pursuant to this Agreement, subject to the provisions of Section 4.4
hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Master Servicer shall treat such cost as a Servicing Advance subject
to the provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor in connection with the curing of the default under
the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions
(after taking into account the projected costs of such actions), then the
Special Servicer shall take such action as it deems to be in the best economic
interest of the Trust, including, without limitation, releasing the lien of the
related Mortgage. If the Special Servicer determines that a material possibility
exists that Liquidation Expenses with respect to Mortgaged Property (taking into
account the cost of bringing it into compliance with applicable Environmental
Laws) would exceed the principal balance of the related Mortgage Loan, the
Special Servicer shall not attempt to bring such Mortgaged Property into
compliance and shall not acquire title to such Mortgaged Property unless it has
received the written consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all funds collected
and received in connection with the operation of each REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to each REO Property one or more accounts held in trust for the
benefit of the Certificateholders in the name of "LaSalle Bank National
Association, as Trustee for the Holders of Morgan Stanley Dean Witter Capital I
Inc. Commercial Mortgage Pass-Through Certificates Series 2000-PRIN [name of
Property Account]" (each, an "REO Account"), which shall be an Eligible Account.
Amounts in any REO Account shall be invested in Eligible Investments. The
Special Servicer shall deposit all funds received with respect to an REO
Property in the applicable REO Account within two days of receipt. The Special
Servicer shall account separately for funds received or expended with respect to
each REO Property. All funds in each REO Account may be invested only in
Eligible Investments. The Special Servicer shall notify the Trustee and the
Master Servicer in writing of the location and account number of each REO
Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in the Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that the Special Servicer may retain in such REO Account such portion
of such proceeds and collections as may be necessary to maintain in the REO
Account sufficient funds for the proper operation, management and maintenance of
the related REO Property, including, without limitation, the creation of
reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Adviser,
and subject to the specific requirements and prohibitions of this Agreement, to
do any and all things in connection therewith as are consistent with the
Servicing Standard, subject to the REMIC Provisions, and in such manner as the
Special Servicer deems to be in the best interest of the Trust, and, consistent
therewith, may advance from its own funds to pay for the following items (which
amounts shall be reimbursed by the Master Servicer or the Trust in accordance
with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that could result or have resulted in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain, operate, lease and
sell such REO Property (other than capital expenditures);
(iv) Notwithstanding the above, the Special Servicer shall pay for such
items if, but only if, in the Special Servicer's good faith reasonable business
judgment, such amounts will be recoverable from (i) proceeds received in respect
of such REO Property prior to the final liquidation of such REO Property or (ii)
Liquidation Proceeds, subject to the provisions of Section 4.4 hereof.
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall use its
best efforts to contract with any Independent Contractor for the operation and
management of the REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the provisions
of Section 856 of the Code and Treasury Regulations Section 1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such contract
shall require, or shall be administered to require, that the Independent
Contractor (A) pay all costs and expenses incurred in connection with the
operation and management of such Mortgaged Property underlying the REO Property
and (B) deposit on a daily basis all amounts payable to the Trust in accordance
with the contract between the Trust and the Independent Contractor in an
Eligible Account;
(iv) none of the provisions of this Section 9.14 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 Trustee with respect to the operation and management of any such REO
Property;
(v) if the Independent Contractor is an Affiliate of the Special
Servicer, the consent of the Operating Adviser and a Nondisqualification Opinion
must be obtained; and
(vi) 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 the Trust pursuant to this
subsection (d) for indemnification of the Special Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. All fees of the Independent Contractor (other than fees
paid for performing services within the ordinary duties of a Special Servicer
which shall be paid by the Special Servicer) shall be paid from the income
derived from the REO Property. To the extent that the income from the REO
Property is insufficient, such fees shall be advanced as a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(e) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property which might cause
the REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code (without giving effect to the final sentence
thereof) or result in the receipt by either REMIC of any "income from
nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code or any
"net income from foreclosure property" which is subject to tax under the REMIC
Provisions unless (i) the Trustee and the Special Servicer have received an
Opinion of Counsel (at the Trust's sole expense) to the effect that, under the
REMIC Provisions and any relevant proposed legislation, any income generated for
REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines that the after-tax net income or earnings with respect to such REO
Property will maximize the net recovery from the REO Property to the
Certificateholders. The Special Servicer shall notify the Trustee and the Master
Servicer of any election by it to incur such tax, and the Special Servicer (i)
shall hold in escrow in an Eligible Account an amount equal to the tax payable
thereby from revenues collected from the related REO Property, (ii) provide the
Trustee with all information for the Trustee to file the necessary tax returns
in connection therewith and (iii) upon request by the Trustee, pay from such
account to the Trustee the amount of the applicable tax. The Trustee shall file
the applicable tax returns based on the information supplied by the Special
Servicer and pay the applicable tax from the amounts collected by the Special
Servicer.
(i) Subject to, and without limiting the generality of the foregoing,
the Special Servicer, on behalf of the Trust, shall not:
(ii) permit the Trust to enter into, renew or extend any New Lease with
respect to the REO Property, if the New Lease by its terms will give rise to any
income that does not constitute Rents from Real Property;
(iii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iv) authorize or permit any construction on the REO Property, other
than the completion of a building or other improvement thereon, and then only if
more than thirty percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
(v) operate, other than through an Independent Contractor, or allow any
other Person to operate, other than through an Independent Contractor, the REO
Property on any date more than 90 days after the Acquisition Date; unless, in
any such case, the Special Servicer has requested and received an Opinion of
Counsel at the Trust's sole expense 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 (without giving effect to the final
sentence thereof) at any time that it is held by REMIC I, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property in accordance with the
Servicing Standard, but prior to the end of the third calendar year following
the end of the year of its acquisition, but in any event prior to the Final
Rated Distribution Date, unless (i) the Trustee, on behalf of the applicable
REMIC Pool, has been granted an extension of time (an "Extension") (which
extension shall be applied for at least 60 days prior to the expiration of the
period specified above) by the Internal Revenue Service to sell such REO
Property, in which case the Special Servicer shall continue to attempt to sell
the REO Property for its fair market value for such period longer than the
period specified above as such Extension permits or (ii) the Special Servicer
seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause either REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Trustee has not
received an Extension or such Opinion of Counsel and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Operating Adviser, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the Special Servicer) in accordance with the Servicing
Standard; provided, however, that no Interested Person shall be permitted to
purchase the REO Property at a price less than the Purchase Price except as
provided in Section 9.36; and provided, further that if the Special Servicer
intends to bid on any REO Property, (i) the Special Servicer shall notify the
Trustee of such intent, (ii) the Trustee shall promptly obtain, at the expense
of the Trust an Appraisal of such REO Property (or internal valuation in
accordance with the procedures specified in Section 6.8) and (iii) the Special
Servicer shall not bid less than the fair market value set forth in such
Appraisal. Neither the Seller nor the Depositor may purchase REO Property at a
price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee and the Master Servicer a statement of
accounting for such REO Property, including without limitation, (i) the
Acquisition Date for the REO Property, (ii) the date of disposition of the REO
Property, (iii) the sale price and related selling and other expenses, (iv)
accrued interest (including interest deemed to have accrued) on the Specially
Serviced Mortgage Loan to which the REO Property related, calculated from the
Acquisition Date to the disposition date, (v) final property operating
statements, and (vi) such other information as the Trustee may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
(d) The Special Servicer shall provide the necessary information to the
Master Servicer to allow the Master Servicer to prepare, deliver and file
reports of foreclosure and abandonment in accordance with Section 6050J and
Section 6050P, if required, of the Code with respect to such REO Property and
shall deliver such information with respect thereto as the Master Servicer or
the Trustee may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with the
enforcement of the rights of the Trust to any property securing any Specially
Serviced Mortgage Loan other than the related Mortgaged Property, the Special
Servicer shall consult with counsel to determine how best to enforce such rights
in a manner consistent with the REMIC Provisions and shall not, based on a
Nondisqualification Opinion addressed to the Special Servicer and the Trustee
(the cost of which shall be an expense of the Trust) take any action that could
result in the failure of either REMIC Pool to qualify as a REMIC while any
Certificates are outstanding, unless such action has been approved by a vote of
100% of each Class of Certificateholders (including the Class R-I and Class R-II
Certificateholders).
SECTION 9.17 SALE OF DEFAULTED MORTGAGE LOANS. In lieu of exercising
remedies pursuant to the terms of any Mortgage Loan and Mortgage, the Special
Servicer may sell a Specially Serviced Mortgage Loan that is a Defaulted
Mortgage Loan for cash in accordance with Section 9.36 hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The Special
Servicer shall deliver to the Depositor, the Master Servicer and the Trustee on
or before the Report Date occurring in March of each year, commencing in March
2001, an Officer's Certificate stating, as to the signer thereof, that (A) a
review of the activities of the Special Servicer during the preceding calendar
year or portion thereof and of the performance of the Special Servicer under
this Agreement has been made under such officer's supervision and (B) to the
best of such officer's knowledge, based on such review, the Special Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Special Servicer shall forward a copy of each
such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before April 1 of each year, commencing in April 2001, the Special Servicer, at
its expense, shall cause a firm of nationally recognized independent public
accountants that is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Depositor, the Master Servicer, the
Operating Adviser and the Trustee to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
and that, on the basis of such examination conducted substantially in compliance
with the USAP or the FHLMC Audit Program, such servicing for the preceding
calendar year has been conducted in compliance with such agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the USAP or FHLMC Audit Program require it to report. The Special Servicer
shall forward a copy of each such report to the Rating Agencies.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the Special
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Special Servicer
shall be a party, or any Person succeeding to the business of the Special
Servicer, shall be the successor of the Special Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation. If the conditions to the proviso in the foregoing
sentence are not met, the Trustee may terminate the Special Servicer's servicing
of the Specially Serviced Mortgage Loans pursuant hereto, such termination to be
effected in the manner set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser, and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Special
Servicer to the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
The Special Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in
Section 9.3) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Special Servicer hereunder or (B) assign and
delegate all of its duties hereunder. In the case of any such assignment and
delegation in accordance with the requirements of clause (A) of this Section,
the Special Servicer shall not be released from its obligations under this
Agreement. In the case of any such assignment and delegation in accordance with
the requirements of clause (B) of this Section, the Special Servicer shall be
released from its obligations under this Agreement, except that the Special
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Special Servicer hereunder prior to the satisfaction of the following
conditions: (i) the Special Servicer gives the Depositor, the Master Servicer,
the Primary Servicer and the Trustee notice of such assignment and delegation;
(ii) such purchaser or transferee accepting such assignment and delegation
executes and delivers to the Depositor and the Trustee an agreement accepting
such assignment, which contains an assumption by such Person of the rights,
powers, duties, responsibilities, obligations and liabilities of the Special
Servicer, with like effect as if originally named as a party to this Agreement;
(iii) the purchaser or transferee has assets in excess of $15,000,000; (iv) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. Notwithstanding the above, the Special Servicer may
appoint Sub-Servicers in accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders or the Trustee for any action taken or for refraining from
the taking of any action in good faith and using reasonable business judgment;
provided that this provision shall not protect the Special Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties hereunder or by reason of
negligent disregard of obligations and duties hereunder. The Special Servicer
and any director, officer, employee or agent of the Special Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the information and
reports delivered by or at the direction of the Master Servicer or any director,
officer, employee or agent of the Master Servicer) respecting any matters
arising hereunder. The Special Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Specially Serviced Mortgage Loans in accordance with this
Agreement; provided that the Special Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Specially Serviced Mortgage Loans, or shall undertake any such action if
instructed to do so by the Trustee. In such event, all legal expenses and costs
of such action (other than those that are connected with the routine performance
by the Special Servicer of its duties hereunder) shall be expenses and costs of
the Trust, and the Special Servicer shall be entitled to be reimbursed therefor
as provided by Section 5.2 hereof. Notwithstanding any term in this Agreement,
the Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgement made in good faith by any officer, unless it shall be proved that the
Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent or Trustee in this Agreement.
The Trust shall indemnify and hold harmless the Special Servicer from any and
all claims, liabilities, costs, charges, fees or other expenses which relate to
or arise from any such breach of representation, warranty or covenant to the
extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in acting or
refraining from acting upon, any resolution, officer's certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed or in good faith believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine and provided by any Mortgagor or manager of a
Mortgaged Property.
The Special Servicer and any director, officer, employee or agent of
the Special Servicer shall be indemnified by the Trustee and the Fiscal Agent,
as the case may be, and held harmless against any loss, liability or expense
including reasonable attorneys' fees incurred in connection with any legal
action relating to the Trustee's or the Fiscal Agent's, as the case may be,
respective willful misfeasance, bad faith or negligence in the performance of
its respective duties hereunder or by reason of negligent disregard by such
Person of its respective duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Special Servicer's duties hereunder or by reason
of negligent disregard of the Special Servicer's obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee and the Fiscal
Agent if a claim is made by a third party entitling the Special Servicer to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Special Servicer). Any
failure to so notify the Trustee shall not affect any rights the Special
Servicer may have to indemnification hereunder or otherwise, unless the interest
of the Trustee is materially prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Trustee, the Fiscal Agent,
as the case may be, pursuant to this paragraph to the Special Servicer shall be
paid from the Trustee's or Fiscal Agent's, as the case may be, own funds,
without reimbursement from the Trust therefor, except achieved through
subrogation as provided in this Agreement.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified by the Trust, and held harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to (i) this Agreement, and
(ii) any action taken by the Special Servicer in accordance with the instruction
delivered in writing to the Special Servicer by the Trustee or the Master
Servicer pursuant to any provision of this Agreement in each case and the
Special Servicer and each of its directors, officers, employees and agents shall
be entitled to indemnification from the Trust for any loss, liability or expense
(including attorneys' fees) incurred in connection with the provision by the
Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee if a claim is
made by a third party with respect hereto or the Specially Serviced Mortgage
Loans entitling the Special Servicer to indemnification hereunder, whereupon the
Trustee shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Special Servicer) and the Trust shall pay, from amounts on
deposit in the Certificate Account pursuant to Section 5.2, all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights the Special Servicer may have to indemnification hereunder or otherwise,
unless the interest of the Trust is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the Special Servicer. Any expenses
incurred or indemnification payments made by the Special Servicer shall be
reimbursed by the party responsible, or if not recovered by the Special Servicer
from such Person, then by the Trust, if a court of competent jurisdiction makes
a final, non-appealable judgment that the conduct of the Special Servicer was
not culpable.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Fiscal Agent, the Depositor, the Master Servicer and any director,
officer, employee or agent or Controlling Persons of the Trustee, the Fiscal
Agent, the Depositor and the Master Servicer, and hold them harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments, and any other costs, liabilities, fees and expenses that the
Trust or the Trustee, the Fiscal Agent, the Depositor or the Master Servicer may
sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of negligent
disregard of obligations and duties hereunder by the Special Servicer. The
Trustee, the Fiscal Agent, the Depositor or the Master Servicer shall
immediately notify the Special Servicer if a claim is made by a third party with
respect to this Agreement or the Specially Serviced Mortgage Loans entitling the
Trust or the Trustee, the Fiscal Agent, the Depositor or the Master Servicer, as
the case may be, to indemnification hereunder, whereupon the Special Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the Fiscal Agent, the Depositor or the Master Servicer, as the
case may be) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Special Servicer shall not affect any rights the Trust or the Trustee, the
Fiscal Agent, the Depositor or the Master Servicer may have to indemnification
under this Agreement or otherwise, unless the Special Servicer's defense of such
claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer or the Trustee or Fiscal Agent. Any expenses
incurred or indemnification payments made by the Special Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Special Servicer was not
culpable or found to have acted with willful misfeasance, bad faith or
negligence.
(c) The Special Servicer shall indemnify and hold harmless the Trust,
the Trustee and the Fiscal Agent, and each of their respective directors, each
of its officers, employees, agents and any Controlling Persons of the Fiscal
Agent or the Trustee from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Trust, the
Trustee or Fiscal Agent, or any such director, officer, employees, agents or
such Controlling Persons may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement of a material fact contained in the Prospectus
Supplement or in the Private Placement Memorandum, or arises out of, or is based
upon the omission to state therein a material fact necessary to make the
statements therein not misleading, and shall reimburse the Trust, Trustee or
Fiscal Agent or any such director, officer, employee, agent or Controlling
Persons for any legal and other expenses reasonably incurred by the Trust, the
Trustee, the Fiscal Agent or any such director, officer, employee, agent or
Controlling Persons in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action, but in each case only to the
extent that the untrue statement or omission was made in reliance upon and in
conformity with written information concerning the Special Servicer furnished to
the Depositor by or on behalf of the Special Servicer specifically for inclusion
therein. The Trustee or the Fiscal Agent, as applicable, shall immediately
notify the Special Servicer if a claim is made by a third party with respect to
this Section 9.24(c) entitling the Trust or the Trustee or the Fiscal Agent, as
the case may be, or any of its directors, officers, employees, agents or
Controlling Persons, as the case may be, to indemnification hereunder, whereupon
the Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Fiscal Agent or the Trustee, as the case may be)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Special Servicer shall not affect any rights the Trust, the Fiscal Agent and the
Trustee may have to indemnification under this Section 9.24(c), unless the
Special Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the resignation or termination of the Special Servicer, the Fiscal Agent and
the Trustee.
(d) The initial Special Servicer and the Depositor expressly agree that
the only information furnished by or on behalf of the Special Servicer for
inclusion in the Prospectus Supplement is the information set forth in the
paragraphs under the caption "SERVICING OF THE MORTGAGE LOANS - The Master
Servicer, Primary Servicer and Special Servicer" of the Prospectus Supplement.
SECTION 9.25 [RESERVED]
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. From and after the Closing Date, the
Special Servicer shall provide the necessary information to the Master Servicer
to allow the Master Servicer to comply with the Mortgagor tax reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect
to any Specially Serviced Mortgage Loan. The Special Servicer shall provide to
the Master Servicer copies of any such reports. The Master Servicer shall
forward such reports to the Trustee.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that the
Master Servicer will be collecting all payments with respect to the Mortgage
Loans (other than payments with respect to REO Income). If, however, the Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income) it shall, within one Business Day of receipt from the Mortgagor
or otherwise of any amounts attributable to payments with respect to or the sale
of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any, (but not
including REO Income, which shall be deposited in the applicable REO Account as
provided in Section 9.14 hereof), either, (i) forward such payment (endorsed, if
applicable, to the order of the Master Servicer), to the Master Servicer, or
(ii) deposit such amounts, or cause such amounts to be deposited, in the
Certificate Account. The Special Servicer shall notify the Master Servicer of
each such amount received on or before the date required for the making of such
deposit or transfer, as the case may be, indicating the Mortgage Loan or
Specially Serviced Mortgage Loan to which the amount is to be applied and the
type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special Servicer
shall act in accordance with this Agreement and the provisions of the Code
relating to REMICs in order to create or maintain the status of either REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause either
REMIC to take any action that would (i) endanger the status of either REMIC as a
REMIC under the Code or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon either REMIC (including, but not limited to, the tax on
prohibited transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) unless the Master Servicer and the
Trustee have received a Nondisqualification Opinion (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Special
Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or, (B) the disposition of
all REO Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (ii) 60 days following the date on
which the Trustee or the Operating Adviser has given written notice to the
Special Servicer that this Agreement is terminated pursuant to Section 9.30(b)
or 9.30(c), respectively, and (iii) the effective date of any resignation of the
Special Servicer effected pursuant to and in accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount when due that is
required to be remitted to the Trustee, the Master Servicer, the Fiscal Agent or
the Depositor under the terms of this Agreement, (ii) the Special Servicer has
failed to deposit into any account any amount required to be so deposited or
remitted under the terms of this Agreement which failure continues unremedied
for one Business Day following the date on which such deposit or remittance was
first required to be made; (iii) the Special Servicer has failed to duly observe
or perform in any material respect any of the other covenants or agreements of
the Special Servicer set forth in this Agreement, and the Special Servicer has
failed to remedy such failure within thirty (30) days after written notice of
such failure, requiring the same to be remedied, shall have been given to the
Special Servicer by the Depositor or the Trustee, provided, however, that if the
Special Servicer certifies to the Trustee and the Depositor that the Special
Servicer is in good faith attempting to remedy such failure, and the
Certificateholders would not be affected thereby, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iv)
the Special Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of any
Class of Certificates, and has failed to cure such breach within thirty (30)
days after notice of such breach, requiring the same to be remedied, shall have
been given to the Special Servicer by the Depositor or the Trustee, provided,
however, that if the Special Servicer certifies to the Trustee and the Depositor
that the Special Servicer is in good faith attempting to remedy such failure,
such cure period may be extended to the extent necessary to permit the Special
Servicer to cure such failure; provided, however, that such cure period may not
exceed 90 days; (v) the Trustee shall receive notice from Moody's to the effect
that the continuation of the Special Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by
Moody's to any Class of Certificates; (vi) [reserved]; (vii) the Special
Servicer is no longer on the approved list of commercial mortgage loan special
servicers maintained by S&P; (viii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Special Servicer or an Affiliate thereof and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; (ix) the
Special Servicer or an Affiliate thereof shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Special Servicer or of or
relating to all or substantially all of its property; or (x) the Special
Servicer or an Affiliate thereof shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing. Such
termination shall be effective on the date after the date of any of the above
events that the Trustee specifies in a written notice to the Special Servicer
specifying the reason for such termination.
(c) The Operating Adviser shall have the right to direct the Trustee to
terminate the Special Servicer, provided that the Operating Adviser shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this Agreement; and provided,
further, that the Trustee shall have received Rating Agency Confirmation from
each Rating Agency prior to the termination of the Special Servicer. The Special
Servicer shall not be terminated pursuant to this subsection (c) until a
successor Special Servicer shall have been appointed. The Operating Adviser
shall pay any costs and expenses incurred by the Trust in connection with the
removal and appointment of a Special Servicer (unless such removal is based on
any of the events or circumstances set forth in Section 9.30(b)).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee no
later than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month in
which the final Distribution Date will occur. Upon any such termination, the
duties of the Special Servicer (other than the obligations of the Special
Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate and the
Special Servicer shall transfer to the Master Servicer the amounts remaining in
each REO Account and shall thereafter terminate each REO Account and any other
account or fund maintained with respect to the Specially Serviced Mortgage
Loans.
(b) On the date specified in a written notice of termination given to
the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided, that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded the Special Servicer as successor Special Servicer, notified the
Special Servicer of such designation, and such successor Special Servicer shall
have assumed the Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed the Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicer, 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.
The Special Servicer agrees to cooperate with the Trustee and the Fiscal Agent
in effecting the termination of the Special Servicer's responsibilities and
rights hereunder as Special Servicer including, without limitation, providing
the Trustee all documents and records in electronic or other form reasonably
requested by it to enable the successor Special Servicer designated by the
Trustee to assume the Special Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Special Servicer in any REO
Account and any other account or fund maintained or thereafter received with
respect to the Specially Serviced Mortgage Loans.
(c) If the Special Servicer receives a written notice of termination
pursuant to clause (ii) of Section 9.30(a) relating solely to an event set forth
in Section 9.30(b)(v), (vi) or (vii), and if the Special Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days after receipt of such written notice of termination, then the
Trustee shall promptly thereafter (using such "request for proposal" materials
provided by the Special Servicer) solicit good faith bids for the rights to be
appointed as Special Servicer under this Agreement from at least three Qualified
Bidders or, if three Qualified Bidders cannot be located, then from as many
persons as the Trustee can determine are Qualified Bidders. At the Trustee's
request, the Special Servicer shall supply the Trustee with the names of Persons
from whom to solicit such bids. In no event shall the Trustee be responsible if
less than three Qualified Bidders submit bids for the right to service the
Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement and there must be delivered a
Rating Agency Confirmation in connection with such appointment. The Trustee
shall direct the Successful Bidder to enter into this Agreement as successor
Special Servicer pursuant to the terms hereof not later than 30 days after the
termination of the Special Servicer hereunder, and in connection therewith to
deliver the amount of the Successful Bidder's cash bid to the Trustee by wire
transfer of immediately available funds to an account specified by the Trustee
no later than 10:00 a.m. New York City time on the date specified for the
assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right hereunder
to and by the Successful Bidder and receipt of such cash bid, the Trustee shall
remit or cause to be remitted to the terminated Special Servicer the amount of
such cash bid received from the Successful Bidder (net of out-of-pocket expenses
incurred in connection with obtaining such bid and transferring servicing) by
wire transfer of immediately available funds to an account specified by the
terminated Special Servicer no later than 1:00 p.m. New York City time on the
date specified for the assignment and assumption of the servicing rights
hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Special within 30 days after the termination of the Special Servicer
hereunder or no Successful Bidder was identified within such 30-day period, the
Trustee shall have no further obligations under Section 9.31(c) and may act or
may select another successor to act as Special Servicer hereunder in accordance
with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer and Trustee on or prior to one Business Day
after the Determination Date for each month, a Special Servicer Monthly Report
substantially in the form of Exhibit O or in such electronic format as is
mutually acceptable to the Master Servicer and the Special Servicer. The Master
Servicer and the Trustee may use such reports or information contained therein
to prepare its reports and the Master Servicer may, at its option, forward such
Special Servicer Monthly Reports directly to the Depositor and the Rating
Agencies. The Special Servicer Monthly Report shall be substantially in the form
of Exhibit O and shall contain a narrative description for each Specially
Serviced Mortgage Loan of the current status of such Loan including the status
of any workout or foreclosure, the change in such status since the prior Special
Servicer Monthly Report, and other information described in Exhibit O.
(b) The Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser and the Master Servicer no later than the ten
Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Trustee at the reasonable request in writing of the Master Servicer or Trustee,
any information in its possession with respect to the Specially Serviced
Mortgage Loans which the Master Servicer or the Trustee, as the case may be,
shall require in order for the Master Servicer or Trustee to comply with its
obligations under this Agreement; provided that the Special Servicer shall not
be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder. The Master Servicer will provide the
Special Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Master Servicer shall
require in order for the Special Servicer to comply with its obligations under
this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance Date,
the Special Servicer shall forward to the Master Servicer a statement setting
forth the status of each REO Account as of the close of business on such Special
Servicer Remittance Date, stating that all remittances required to be made by it
as required by this Agreement to be made by the Special Servicer have been made
(or, if any required distribution has not been made by the Special Servicer,
specifying the nature and status thereof) and showing, for the period from the
day following the preceding Special Servicer Remittance Date to such Special
Servicer Remittance Date, the aggregate of deposits into and withdrawals from
each REO Account for each category of deposit specified in Section 5.1 of this
Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain and, to
the extent obtained, to deliver to the Master Servicer, the Trustee, the Rating
Agencies and the Operating Adviser on or before April 15 of each year,
commencing with April 15, 2001, (i) copies of the prior year operating
statements and quarterly statements, if available, for each Mortgaged Property
underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal
year end, provided that either the related Mortgage Note or Mortgage requires
the Mortgagor to provide such information, or if the related Mortgage Loan has
become an REO Property, (ii) a copy of the most recent rent roll available for
each Mortgaged Property, and (iii) a table, setting forth the Debt Service
Coverage Ratio and occupancy with respect to each Mortgaged Property covered by
the operating statements delivered above.
(f) The Special Servicer shall deliver to the Master Servicer, the
Depositor and the Trustee all such other information with respect to the
Specially Serviced Mortgage Loans at such times and to such extent as the Master
Servicer, the Trustee or Depositor may from time to time reasonably request;
provided, however, that the Special Servicer shall not be required to produce
any ad hoc non-standard written reports with respect to such Mortgage Loans
except if any Person (other than the Trustee) requesting such report pays a
reasonable fee to be determined by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection Report of
each Specially Serviced Mortgage Loan in accordance with Section 9.4(b) to the
Operating Adviser.
(h) The Special Servicer shall provide, as soon as practicable after a
Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the Master Servicer
its estimate of the net recoverable amount to the Certificateholders and
anticipated expenses in connection therewith (and a general description of the
plan to achieve such recovery) of such Specially Serviced Mortgage Loan and
other information reasonably requested by the Master Servicer. The Special
Servicer shall update such information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER.
(a) The Special Servicer shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the Master
Servicer or Trustee to enable it to perform its duties under this Agreement or
the Primary Servicing Agreement, as applicable; provided that no such request
shall (i) require or cause the Special Servicer to violate the Code, any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the servicing standards set forth in this Agreement and to
maintain the REMIC status of either REMIC Pool or (ii) expose the Special
Servicer, the Trust, the Fiscal Agent or the Trustee to liability or materially
expand the scope of the Special Servicer's responsibilities under this
Agreement. In addition, the Special Servicer shall notify the Master Servicer of
all expenditures incurred by it with respect to the Specially Serviced Mortgage
Loans which are required to be made by the Master Servicer as Servicing Advances
as provided herein, subject to the provisions of Section 4.4 hereof. The Special
Servicer shall also remit all invoices relating to Servicing Advances promptly
upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of the
Trust;
(ii) if the Special Servicer elects to proceed with a foreclosure,
whether a deficiency judgment should or should not be sought because the likely
recovery will or will not be sufficient to warrant the cost, time and exposure
of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale" clause or
"due-on-encumbrance" clause contained in a Mortgage Loan or a Specially Serviced
Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement from or
with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced Mortgage
Loan secured by a Mortgaged Property which is not in compliance with CERCLA, or
any comparable environmental law, whether it is in the best economic interest of
the Trust to bring the Mortgaged Property into compliance therewith and an
estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall include any
proposed release, substitution or addition of collateral), extension, waiver,
amendment, discounted payoff or sale of a Mortgage Loan, 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 liquidation
of such Mortgage Loan; such analysis shall specify the basis on which the
Special Servicer made such determination, including the status of any existing
material default or the grounds for concluding that a payment default is
imminent.
SECTION 9.34 CERTAIN REMIC LIMITATIONS ON MODIFICATION OF SPECIALLY
SERVICED MORTGAGE LOANS. Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not permit any modification of any Money
Term of a Specially Serviced Mortgage Loan if the Mortgage Loan is not in
default or default with respect thereto is not reasonably foreseeable unless (i)
the Special Servicer shall have received a Nondisqualification Opinion or a
ruling from the Internal Revenue Service to the effect that such modification
would not be treated as a "significant modification" for purposes of Treasury
Regulations Section 1.860G-2(b) of the Code, the reasonable cost of which
opinion shall be an expense of the Trust or (ii) such modification meets the
requirements set forth in Section 9.5.
SECTION 9.35 [RESERVED]
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO PROPERTIES.
(a) Any of (i) the Master Servicer, (ii) the Special Servicer, (iii)
any holder of Certificates evidencing a majority interest in the Controlling
Class and (iv) the Seller, in that order, has the right to purchase from the
Trust, at the applicable Purchase Price, those Specially Serviced Mortgage Loans
or defaulted Mortgage Loans that are at least sixty (60) days delinquent and
which the Special Servicer has determined, in its reasonable good faith
judgment, in accordance with the Servicing Standard, will become the subject of
foreclosure proceedings (other than any such Mortgage Loan that it determines,
in its reasonable good faith judgment, in accordance with the Servicing
Standard, is in default to avoid a prepayment restriction). In addition, the
Seller, has the right to purchase from the Trust, at the applicable Purchase
Price, Mortgage Loans that are in default or as to which default is reasonably
foreseeable. If Seller purchases a Mortgage Loan from the Trust that is not in
default or as which default is not imminent and such purchase results in a tax
on prohibited transactions as defined in Code Section 860F(a)(2) or a tax on
prohibited contributions set forth in Section 860G(d) of the Code, the Seller
shall indemnify the Trust for such tax unless such indemnification shall itself
result in a tax.
The Special Servicer may, after providing notice to the Operating
Adviser and the Trustee, subject to the limitations in paragraph (d) below,
offer to sell for cash to any Person, for an amount equal to the Purchase Price
therefor, any REO Property or Defaulted Mortgage Loan not otherwise purchased
pursuant to the prior paragraph (other than any such Mortgage Loan that it
determines, in its reasonable good faith judgment, in accordance with the
Servicing Standard, is in default to avoid a prepayment restriction), if and
when the Special Servicer determines, consistent with the Servicing Standard,
that such a sale would be in the best economic interests of the Trust. In the
case of REO Property, the Special Servicer shall offer to sell such REO Property
no later than the time determined by the Special Servicer to be sufficient to
result in the sale of such REO Property on or prior to the date specified in
Section 9.15 and in any event prior to the Final Rated Distribution Date. The
Special Servicer shall give the Operating Adviser, the Master Servicer and the
Trustee not less than five days' prior written notice of its intention to sell
any such Defaulted Mortgage Loan or REO Property, and in respect of such sale,
the Special Servicer shall offer such Defaulted Mortgage Loan or REO Property in
a commercially reasonable manner for a period of not less than thirty days.
Unless the Special Servicer determines that acceptance, in accordance
with the Servicing Standard, of any offer would not be in the best economic
interests of the Trust, the Special Servicer shall accept the highest cash offer
received from any Person that constitutes a fair price (which may be less than
the Purchase Price) for such Defaulted Mortgage Loan or REO Property.
Notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or any REO Property. In addition, the Special Servicer
may accept a lower bid (including a bid lower than the Purchase Price) of a
Person other than an Interested Person or the Operating Adviser, if any, if it
determines, in accordance with the Servicing Standard, that acceptance of such
bid would be in the best interests of the Certificateholders (for example, if
the prospective buyer making the lower bid is more likely to perform its
obligations, or the terms offered by the prospective buyer making the lower bid
are more favorable), provided, that if any Defaulted Mortgage Loan or REO
Property as to which an Appraisal Reduction has occurred is to be sold by the
Special Servicer, the Special Servicer shall not, without the approval of the
Operating Adviser, if any, accept any bid for such loan or property that is less
than 90% of the appraised value of the related Mortgaged Property (based on the
appraisal used in determining the related Appraisal Reduction). The Special
Servicer, after notice to the Operating Adviser, if any, shall determine no
later than six months prior to the end of the three-year period referred in
Section 9.15 with respect to any REO Property whether a sale of such REO
Property pursuant to any bids being made with respect thereto is in the best
economic interests of the Certificateholders as a whole. If the Special Servicer
so determines in accordance with the Servicing Standard after notice to the
Operating Adviser, if any, that such a sale would not be in the best interests
of the Certificateholders, the Special Servicer shall seek an extension of such
period in the manner described in Section 9.15.
In determining whether any bid received from an Interested Person or
whether the price to be paid by the Special Servicer or any Affiliate thereof
represents a fair price or market value for any Defaulted Mortgage Loan or any
REO Property, the Special Servicer is required to request that the Trustee make
a determination as to whether such bid constitutes a fair price. Upon request of
the Special Servicer to make such a determination, the Trustee will, within a
reasonable period of time (but in no event more than 10 Business Days), make
such a determination based solely and conclusively upon an Appraisal of such REO
Property by an Independent MAI-designated appraiser selected by the Trustee at
the expense of the Trust. In determining whether any bid constitutes a fair
price or market value for any Defaulted Mortgage Loan or any REO Property, the
Special Servicer shall take into account, among other factors, the period and
amount of any delinquency on the affected Defaulted Mortgage Loan, the physical
condition of the related Mortgaged Property or such REO Property, the state of
the local economy and the Trust's obligation to dispose of any REO Property
within the three-year period specified in Section 9.15.
(b) Subject to the REMIC Provisions, the Special Servicer shall act on
behalf of the Trust in negotiating and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, including the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the Fiscal
Agent, the Depositor, the Special Servicer, the Master Servicer, or the Trust.
Notwithstanding the foregoing, nothing herein shall limit the liability of the
Master Servicer, the Special Servicer or the Trustee to the Trust and the
Certificateholders for failure to perform its duties in accordance herewith.
None of the Special Servicer, the Master Servicer, the Depositor, the Fiscal
Agent or the Trustee shall have any liability to the Trust or any
Certificateholder with respect to the price at which a Defaulted Mortgage Loan
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(c) The proceeds of any sale after deduction of the expenses of such
sale incurred in connection therewith shall be deposited within one Business Day
in the Certificate Account.
(d) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be required to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of receiving
reports and information from the Special Servicer in respect of the Specially
Serviced Mortgage Loans.
(b) As of the Closing Date, the initial Operating Adviser is Principal
Capital Management, LLC. The Controlling Class shall give written notice to the
Trustee and the Master Servicer of the appointment of any subsequent Operating
Adviser (in order to receive notices hereunder). If a subsequent Operating
Adviser is not so appointed, an election of an Operating Adviser also shall be
held. Notice of the meeting of the Holders of the Controlling Class shall be
mailed or delivered to each Holder by the Trustee, not less than 10 nor more
than 60 days prior to the meeting. The notice shall state the place and the time
of the meeting, which may be held by telephone. A majority of Certificate
Balance of the Certificates of the then Controlling Class, present in person or
represented by proxy, shall constitute a quorum for the nomination of an
Operating Adviser. At the meeting, each Holder shall be entitled to nominate one
Person to act as Operating Adviser. The Trustee shall cause the election of the
Operating Adviser to be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall be
entitled to vote in each election of the Operating Adviser. The voting in each
election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Trustee on or prior to
the date of such election. Immediately upon receipt by the Trustee of votes
(which have not been rescinded) from the Holders of Certificates representing
more than 50% of the Certificate Balance of the Certificates of the then
Controlling Class which are cast for a single Person, such Person shall be, upon
such Person's acceptance, the Operating Adviser. Until an Operating Adviser is
elected by Holders of Certificates representing more than 50% of the Certificate
Balance of the Certificates of the then Controlling Class or in the event that
an Operating Adviser shall have resigned or been removed and a successor
Operating Adviser shall not have been elected, there shall be no Operating
Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Trustee, of more than 50% of the
Certificate Balance of the Holders of the Certificates of the then Controlling
Class.
(e) The Trustee shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Trustee
shall be conclusive. Notwithstanding any other provisions of this Section 9.37,
the Trustee may make such reasonable regulations as it may deem advisable for
any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust or the Certificateholders
for any action taken, or for refraining from the taking of any action, in good
faith and using reasonable business judgment pursuant to this Agreement, or
using reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
entitled to indemnification from the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating Adviser may
advise, and receive notice from, the Special Servicer, but is not required to do
so on any of the following actions:
(i) any foreclosure upon or comparable conversion (which may include
acquisition of an REO Property) of the ownership of properties securing such of
the Specially Serviced Mortgage Loans as come into and continue in default;
(ii) any modification of a Money Term of a Mortgage Loan other than a
modification consisting of the extension of the original Maturity Date of a
Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan (other than upon
termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into compliance with
Environmental Laws; and
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan.
In addition, the Operating Adviser may direct the Trustee to remove the
Special Servicer at any time upon the appointment and acceptance of such
appointment by a successor to the Special Servicer; provided that, prior to the
effectiveness of any such appointment, the Trustee shall have received Rating
Agency Confirmation from each Rating Agency. The Operating Adviser shall pay any
costs and expenses incurred by the Trust in connection with the removal and
appointment of a Special Servicer (unless such removal is based on any of the
events or circumstances set forth in Section 9.30(b)). Furthermore, with respect
to any Required Appraisal Loan, the Operating Adviser shall be entitled to
request the Special Servicer to obtain, at the cost and expense of the Operating
Adviser, an updated Appraisal to be used to calculate any Appraisal Reductions.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1 TERMINATION OF TRUST UPON REPURCHASE OR LIQUIDATION OF ALL
MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee, to make payments to the
Certificateholders as set forth in Section 10.2 and other than the obligations
in the nature of information or tax reporting) shall terminate on the earliest
of (i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders) or (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) or (iii) the termination of the
Trust pursuant to Section 10.1(c) below; provided that in no event shall the
Trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof.
(b) The Master Servicer shall give the Trustee notice of the date when
the Aggregate Certificate Balance of the Certificates, after giving effect to
distributions of principal made on the next Distribution Date, is less than or
equal to one percent (1%) of the initial Aggregate Certificate Balance of the
Certificates as of the Cut-Off Date. The Trustee shall promptly forward such
notice to the Seller, the Special Servicer, the Primary Servicer, the Master
Servicer, Depositor and the Holders of the Class R-I Certificates, who in such
priority (and in the case of the Class R-I Certificateholders, a majority of the
Class R-I Certificateholders), may purchase, in whole only, the Mortgage Loans
and any other property, if any, remaining in the Trust. If any party desires to
exercise such option, it will notify the Trustee who will notify any party with
a prior right to exercise such option. If any party that has been provided
notice by the Trustee notifies the Trustee within ten Business Days after
receiving notice of the proposed purchase that it wishes to purchase the assets
of the Trust, then such party (or, in the event that more than one of such
parties notifies the Trustee that it wishes to purchase the assets of the Trust,
the party with the first right to purchase the assets of the Trust) may purchase
the assets of the Trust in accordance with this Agreement. Upon the Trustee's
receipt of the Termination Price set forth below, the Trustee shall promptly
release or cause to be released to the Master Servicer for the benefit of the
Seller, Depositor, the Holder of the majority of the Class R-I Certificates, the
Special Servicer, Primary Servicer or the Master Servicer, as the case may be,
the Mortgage Files pertaining to the Mortgage Loans. The "Termination Price"
shall equal 100% of the aggregate Principal Balances of the Mortgage Loans
(other than Mortgage Loans as to which a Final Recovery Determination has been
made) on the day of such purchase plus accrued and unpaid interest thereon at
the applicable Mortgage Rates (or Mortgage Rates less the Master Servicing Fee
Rate if the Master Servicer is the Purchaser), with respect to the Mortgage
Loans to the Due Date for each Mortgage Loan ending in the Collection Period
with respect to which such purchase occurs, plus unreimbursed Advances and
interest on such unreimbursed Advances at the Advance Rate, and the fair market
value of any other property remaining in REMIC I. The Trustee shall consult with
the Placement Agent and each Underwriter or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if the
Placement Agent or either Underwriter or an Affiliate of the Placement Agent or
either Underwriter is exercising its right to purchase the Trust assets, the
Trustee shall consult with the Operating Adviser in order for the Trustee to
determine the fair market value, provided that the Operating Adviser is not an
Affiliate of the Depositor, the Class R-I Holder, the Special Servicer or the
Master Servicer, or a third party chosen by the Depositor unless the Depositor
is bidding for such property, or the Trustee (the fees and expenses of which
shall be paid for by buyer of the property). As a condition to the purchase of
the Trust pursuant to this Section 10.1(b), the Depositor, the Holder of the
majority of the Class R-I Certificates, the Seller, the Special Servicer,
Primary Servicer or the Master Servicer, as the case may be, must deliver to the
Trustee an Opinion of Counsel, which shall be at the expense of the Depositor,
such Holders, the Seller, the Special Servicer, Primary Servicer or the Master
Servicer, as the case may be, stating that such termination will be a "qualified
liquidation" under section 860F(a)(4) of the Code. Such purchase shall be made
in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own 100%
of the REMIC II Certificates such Holders may terminate REMIC I (which will in
turn result in the termination of REMIC II) upon (i) the delivery to the Trustee
and the Depositor of an Opinion of Counsel (which opinion shall be at the
expense of such Holders) stating that such termination will be a "qualified
liquidation" of each REMIC under Section 860F of the Code, and (ii) the payment
of any and all costs associated with such termination. Such termination shall be
made in accordance with Section 10.3.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Trustee, the Rating Agencies, the Class R-I and REMIC II Certificateholders
mailed no later than ten days prior to the date of such termination. Such notice
shall specify (A) the Distribution Date upon which final distribution on the
Class R-I and REMIC II Certificates will be made, and upon presentation and
surrender of the Class R-I and REMIC II Certificates at the office or agency of
the Certificate Registrar therein specified, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Class R-I and REMIC II
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I and REMIC II Certificates. Upon any such termination, the duties of the
Certificate Registrar with respect to the Class R-I and REMIC II Certificates
shall terminate and the Trustee shall terminate, or request the Master Servicer
to terminate, the Certificate Account and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee's obligation hereunder to hold all amounts payable to the Class R-I and
REMIC II Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-I and REMIC II Certificates for cancellation
within three months after the time specified in the above-mentioned written
notice, the Certificate Registrar shall give a second written notice to the
remaining Class R-I and REMIC II Certificateholders to surrender their
certificates evidencing the Class R-I and REMIC II Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice any Class R-I and REMIC II Certificates shall not have
been surrendered for cancellation, the Certificate Registrar may take
appropriate steps to contact the remaining Class R-I and REMIC II
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice any such Class R-I and REMIC II
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all amounts
distributable to such Holders for the benefit of such Holders. No interest shall
accrue on any amount held by the Trustee and not distributed to a Class R-I and
REMIC II Certificateholders due to such Certificateholder's failure to surrender
its Certificate(s) for payment of the final distribution thereon in accordance
with this Section. Any money held by the Trustee pending distribution under this
Section 10.2 after 90 days after the adoption of a plan of complete liquidation
shall be deemed for tax purposes to have been distributed from the REMICs and
shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance with the
following additional requirements, unless at the request of the Master Servicer
or the Class R-I Certificateholders, as the case may be, the Trustee seeks, and
the Trustee subsequently receives an Opinion of Counsel (at the expense of the
Master Servicer or the Class R-I Certificateholders, as the case may be),
addressed to the Depositor and the Trustee to the effect that the failure of the
Trust to comply with the requirements of this Section 10.3 will not (i) result
in the imposition of taxes on "prohibited transactions" on either REMIC under
the REMIC Provisions or (ii) cause either REMIC Pool to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final payment
on the Class R-I and REMIC II Certificates the Trustee on behalf of REMIC I and
REMIC II shall designate the date of adoption of a plan of complete liquidation
of REMIC I and REMIC II, and shall specify such date in the final federal income
tax return of each REMIC Pool;
(ii) On or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on the
Class R-I and REMIC II Certificates, the Trustee shall sell all of the assets of
the Trust for cash at the Termination Price; provided that if the Holders of the
Class R-I Certificates are purchasing the assets of the Trust, the amount to be
paid by such Holders may be paid net of the amount to be paid to such Holders as
final distributions on any Certificates held by such Holders; and
(iii) At the time of the making of the final payment on the
Certificates and within 90 days of the date of adoption of the plan of complete
liquidation, the Trustee shall distribute or credit, or cause to be distributed
or credited, (A) to the Holders of the Class R-I Certificates all assets of
REMIC I remaining after final payment of REMIC I Regular Interests and (B) to
the Holders of the Class R-II Certificates all remaining assets of REMIC II (in
each case other than cash retained to meet claims), and the Trust shall
terminate at that time.
(b) By their acceptance of the Class R-I or Class R-II Certificates,
respectively, the Holders thereof hereby (i) authorize the Trustee to take such
action as may be necessary to effect a plan of complete liquidation of the REMIC
Pool and (ii) agree to take such other action as may be necessary to adopt a
plan of complete liquidation of the Trust upon the written request of the
Depositor, which authorization shall be binding upon all successor Class R-I and
Class R-II Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the Holders of
REMIC Regular Certificates and Holders of Residual Certificates to the extent
appropriate.
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty 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 and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing 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 benefit
of all Certificateholders. 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 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee, in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer or three or more Holders (hereinafter referred to as
"applicants," with a single Person which (together with its Affiliates) is the
Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Master Servicer and the Trustee
that neither the Depositor, the Certificate Registrar, the Master Servicer nor
the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders 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 Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Depositor and the, if
made in the manner provided in this Section. The Trustee agrees to promptly
notify the Depositor of any such instrument or instruments received by it, and
to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Depositor in reliance thereon, whether or not notation of such action is
made upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Trustee to treat the segregated
pool of assets consisting of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and the Distribution Account, the
Insurance Policies and any REO Properties as a REMIC under the Code. Such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC I Interests are issued.
For purposes of such election, the REMIC I Regular Interests shall each be
designated as a separate Class of "regular interests" in the REMIC I and the
Class R-I Certificates shall be designated as the sole class of "residual
interests" in the REMIC I. The Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the
REMICs other than REMIC I Regular Interests, the REMIC Regular Certificates and
the Residual Certificates.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC under the Code.
Such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC II Certificates are
issued. For purposes of such election, the Class A-1, Class A-2, Class A-3,
Class A-4, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L and Class M Certificates shall be designated as the
"regular interests" in REMIC II and the Class R-II Certificates shall be
designated as the sole class of "residual interests" in REMIC II.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Trustee shall cause to be prepared, signed, and timely filed
with the Internal Revenue Service, on behalf of each REMIC Pool, an application
for a taxpayer identification number for such REMIC Pool on Internal Revenue
Service Form SS-4. The Trustee, upon receipt from the Internal Revenue Service
of the Notice of Taxpayer Identification Number Assigned, shall promptly forward
a copy of such notice to the Depositor and the Master Servicer. The Trustee
shall prepare and file Form 8811 on behalf of each REMIC Pool and shall
designate an appropriate Person to respond to inquiries by or on behalf of
Certificateholders for original issue discount and related information in
accordance with applicable provisions of the Code.
(e) The Trustee shall prepare and file all of each REMIC Pool's federal
and state income or franchise tax and information returns as such REMIC Pool
direct representative; the expenses of preparing and filing such returns shall
be borne by the Trustee, except that if additional state tax returns are
required to be filed in more than three states, the Trustee shall be entitled,
with respect to any such additional filings, to (i) be paid a reasonable fee and
(ii) receive its reasonable costs and expenses, both as amounts reimbursable
pursuant to Section 5.2(a)(vi) hereof. The Depositor, the Master Servicer and
the Special Servicer shall provide on a timely basis to the Trustee or its
designee such information with respect to the Trust or either REMIC Pool as is
in its possession, which the Depositor or the Master Servicer and the Special
Servicer has received or prepared by virtue of its role as Depositor or Master
Servicer and the Special Servicer hereunder and reasonably requested by the
Trustee to enable it to perform its obligations under this subsection, and the
Trustee shall be entitled to conclusively rely on such information in the
performance of its obligations hereunder. The Depositor shall indemnify the
Trust, the Trustee and the Fiscal Agent for any liability or assessment against
any of them or cost or expense (including attorneys' fees) incurred by them
resulting from any error resulting from bad faith, negligence, or willful
malfeasance of the Depositor in providing any information for which the
Depositor is responsible for preparing. The Master Servicer and the Special
Servicer shall indemnify the Trustee, the Fiscal Agent and the Depositor for any
liability or assessment against the Trustee, the Fiscal Agent, the Depositor or
either REMIC Pool and any expenses incurred in connection with such liability or
assessment (including attorneys' fees) resulting from any error in any of such
tax or information returns resulting from errors in the information provided by
the Master Servicer or the Special Servicer, as the case may, be or caused by
the negligence, willful misconduct or bad faith of the Master Servicer or the
Special Servicer, as the case may be. The Trustee shall indemnify the Master
Servicer, the Depositor or either REMIC Pool for any expense incurred by the
Master Servicer, the Depositor and either REMIC Pool resulting from any error in
any of such tax or information returns resulting from errors in the preparation
of such returns caused by the negligence, willful misconduct or bad faith of the
Trustee. Each indemnified party shall immediately notify the indemnifying party
or parties of the existence of a claim for indemnification under this Section
12.1(e), and provide the indemnifying party or parties, at the expense of such
indemnifying party or parties, an opportunity to contest the tax or assessment
or expense giving rise to such claim, provided that the failure to give such
notification rights shall not affect the indemnification rights in favor of
either REMIC Pool under this Section 12.1(e). Any such indemnification shall
survive the resignation or termination of the Master Servicer, the Trustee or
the Special Servicer, or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC all reporting and
other tax compliance duties that are the responsibility of such REMIC Pool under
the Code, REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
the Trustee shall provide (i) to the Internal Revenue Service or other Persons
(including, but not limited to, the Transferor of a Residual Certificate, to a
Disqualified Organization or to an agent that has acquired a Residual
Certificate on behalf of a Disqualified Organization) such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Form 1099 information returns and such other
information within the control of the Trustee as the Depositor may reasonably
request in writing. Moreover, the Trustee shall forward to each
Certificateholder such forms and furnish such information within its control as
are required by the Code to be furnished to them, shall prepare and file with
the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will make available to any Certificateholder any tax
related information required to be made available to Certificateholders pursuant
to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in the
Class R-I and Class R-II Certificates, respectively (or of the greatest
percentage of such Class R-I and Class R-II Certificates if no Holder holds more
than 50% thereof), shall be the applicable REMIC's Tax Matters Person. The
duties of the Tax Matters Person for each of the REMIC Pools are hereby
delegated to the Trustee and each Residual Certificateholder, by acceptance of
its Residual Certificate, agrees, on behalf of itself and all successor holders
of such Residual Certificate, to such delegation to the Trustee as their agent
and attorney in fact. If the Code or applicable regulations prohibits the
Trustee from signing any applicable Internal Revenue Service, court or other
administrative documents or from acting as Tax Matters Person (as an agent or
otherwise), the Trustee shall take whatever action is necessary for the signing
of such documents and designation of a Tax Matters Person, including the
designation of such Residual Certificateholder. The Trustee shall not be
required to expend or risk its own funds or otherwise incur any other financial
liability in the performance of its duties hereunder or in the exercise of any
of its rights or powers (except to the extent of the ordinary expenses of
performing its duties under this Agreement), if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(i) The Trustee, the Holders of the Residual Certificates, the Master
Servicer and the Special Servicer shall each exercise reasonable care, to the
extent within its control, and with respect to each of the Trustee, the Master
Servicer and the Special Servicer, within the scope of its express duties, and
shall each act in accordance with this Agreement and the REMIC Provisions in
order to create and maintain the status of each REMIC Pool as a REMIC or, as
appropriate, adopt a plan of complete liquidation.
(j) The Trustee, the Master Servicer, the Special Servicer, the Fiscal
Agent and the Holders of Residual Certificates shall not take any action or fail
to take any action or cause either REMIC Pool to take any action or fail to take
any action if any of such persons knows or could, upon the exercise of
reasonable diligence, know, that, under the REMIC Provisions such action or
failure, as the case may be, could (i) endanger the status of either REMIC Pool
as a REMIC or (ii) result in the imposition of a tax upon either REMIC Pool
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2), but excluding the tax on net income from foreclosure
property incurred pursuant to Section 9.14(e)) unless the Trustee has received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such status or
result in the imposition of such a tax. Any action required under this section
which would result in an unusual or unexpected expense shall be undertaken at
the expense of the party seeking the Trustee or the Holders of the Residual
Certificates to undertake such action.
(k) In the event that any tax is imposed on REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I or REMIC II after the Startup Day pursuant to Section 860G(d) of the
Code, and any other tax imposed by the Code or any applicable provisions of
state or local tax laws (other than a tax on net income from foreclosure
property permitted to be incurred by the Special Servicer pursuant to Section
9.14(e)), such tax, together with all incidental costs and expenses (including,
without limitation, penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Trustee, if such tax arises out of or results from a
breach of any of its obligations under this Agreement; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under this Agreement; (iii) the Master
Servicer, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under this Agreement; (iv) the Fiscal Agent,
if such tax arises out of or results from a breach by the Fiscal Agent of any of
its obligations under this Agreement; and (v) the Trust in all other instances.
Any tax on net income from foreclosure property permitted to be incurred by the
Special Servicer pursuant to Section 9.14(e) shall be charged to and paid by the
Trust from the net income generated on the related REO Property. Any such
amounts payable by the Trust in respect of taxes shall be paid by the Trustee
out of amounts on deposit in the Distribution Account.
(l) The Trustee and, to the extent that records are maintained by the
Master Servicer or the Special Servicer in the normal course of its business,
the Master Servicer and the Special Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis. Notwithstanding anything to the contrary
contained herein, except to the extent provided otherwise in the Mortgage Loans
or in the Mortgages, all amounts collected on the Mortgage Loans shall, for
federal income tax purposes, be allocated first to interest due and payable on
the Mortgage Loans (including interest on overdue interest, other than
additional interest at a penalty rate payable following a default). The books
and records must be sufficient concerning the nature and amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the REMIC
Provisions.
(m) Neither the Trustee, the Master Servicer nor the Special Servicer
shall enter into any arrangement by which either REMIC Pool will receive a fee
or other compensation for services.
(n) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee reasonably determines to be relevant for tax purposes on the valuations
and offering prices of the Certificates, including, without limitation, the
yield, prepayment assumption, issue prices and projected cash flows of the
Senior Certificates, Subordinate Certificates and Residual Certificates, as
applicable, and the projected cash flows of the Mortgage Loans. Thereafter, the
Depositor shall provide to the Trustee or its designee, promptly upon request
therefor, any such additional information or data within the Depositor's
possession or knowledge that the Trustee may, from time to time, reasonably
request in order to enable the Trustee to perform its duties as set forth
herein. The Trustee is hereby directed to use any and all such information or
data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, the Fiscal Agent, and each REMIC Pool for any losses, liabilities,
damages, claims, expenses (including attorneys' fees) or assessments against the
Trustee, the Fiscal Agent and each REMIC Pool arising from any errors or
miscalculations of the Trustee pursuant to this Section that result from any
failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Trustee (but not resulting from the methodology
employed by the Trustee) on a timely basis and such indemnification shall
survive the termination of this Agreement and the termination or resignation of
the Trustee and the Fiscal Agent.
The Trustee agrees that all such information or data so obtained by it are to be
regarded as confidential information and agrees that it shall use its best
reasonable efforts to retain in confidence, and shall ensure that its officers,
employees and representatives retain in confidence, and shall not disclose,
without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Trustee and its parent, or (ii) in connection with
its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC II and for each Class of REMIC I
Regular Interests is the Final Rated Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Master Servicer nor the Special Servicer shall permit the sale,
disposition or substitution of any of the Mortgage Loans (except in a
disposition pursuant to (i) the foreclosure or default of a Mortgage Loan, (ii)
the bankruptcy or insolvency of either REMIC Pool, (iii) the termination of
either REMIC Pool in a "qualified liquidation" as defined in Section 860F(a)(4)
of the Code, or (iv) a substitution pursuant to Article II hereof), nor acquire
any assets for the Trust, except as provided in Article II hereof, nor sell or
dispose of any investments in the Certificate Account or Distribution Account
for gain, nor accept any contributions to either REMIC Pool (other than a cash
contribution during the 3-month period beginning on the Startup Day), unless it
has received an Opinion of Counsel (at the expense of the Person requesting such
action) to the effect that such disposition, acquisition, substitution, or
acceptance will not (A) affect adversely the status of either REMIC Pool as a
REMIC or of the REMIC I Regular Interests or the REMIC Regular Certificates as
the regular interests therein, (B) affect the distribution of interest or
principal on the Certificates, (C) result in the encumbrance of the assets
transferred or assigned to either REMIC Pool (except pursuant to the provisions
of this Agreement) or (D) cause either REMIC Pool to be subject to a tax on
"prohibited transactions" or "prohibited contributions" or other tax pursuant to
the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, neither the Trustee, the Master Servicer nor
the Special Servicer shall permit any modification (other than a modification
that adds, deletes, or alters customary accounting or financial covenants) of a
Mortgage Loan or a Specially Serviced Mortgage Loan which is not in default or
as to which a default is not reasonably foreseeable unless (i) the Trustee, the
Special Servicer and the Master Servicer has determined (and the Special
Servicer or Master Servicer, as applicable, may rely upon a Nondisqualification
Opinion or a ruling from the Internal Revenue Service (at the expense of the
party making the request that the Master Servicer or the Special Servicer modify
the Mortgage Loan or a Specially Serviced Mortgage Loan) to the effect that)
such modification would not be treated as an exchange pursuant to Section 1001
of the Code (or, if it would be so treated, would not be treated as a
"significant modification" for purposes of Treasury Regulations Section
1.860G-2(B) of the Code) or (ii) such modification meets the requirements set
forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS. In the event that either REMIC Pool fails to qualify as a REMIC, loses
its status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by the Trustee of its duties
and obligations set forth herein, the Trustee shall be liable to the REMIC Pools
and the Holders of the Certificates for any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence and relating
to the Certificates; provided, however, that the Trustee shall not be liable for
any such Losses attributable to the action or inaction of the Master Servicer,
the Special Servicer, the Depositor or the Holders of such Certificates nor for
any such Losses resulting from any actions or failure to act based upon reliance
on an Opinion of Counsel or from misinformation provided by the Master Servicer,
the Special Servicer, the Depositor or such Holders of the Certificates on which
the Trustee has relied. The foregoing shall not be deemed to limit or restrict
the rights and remedies of the Holders of the Certificates now or hereafter
existing at law or in equity. The Trustee shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 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,
understandings, 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 supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, Prospectus
Supplement or the Prospectus, or to correct or supplement any provision herein
which may be inconsistent with any other provisions herein, (iii) to amend any
provision hereof to the extent necessary or desirable to maintain the status of
each REMIC Pool as a REMIC for the purposes of federal income tax law (or
comparable provisions of state income tax law), (iv) to make any other
provisions with respect to matters or questions arising under or with respect to
this Agreement not inconsistent with the provisions hereof, (v) to modify, add
to or eliminate the provisions of Article III relating to transfers of Residual
Certificates or (vi) any other amendment which does not adversely affect in any
material respect the interests of any Certificateholder (unless such
Certificateholder consents). No such amendment effected pursuant to clause (i),
(ii) or (iv) of the preceding sentence shall (A) adversely affect in any
material respect the interests of any Holder not consenting thereto, and no
amendment shall adversely affect the status of either REMIC Pool as a REMIC
without the consent of 100% of the Certificateholders or (B) adversely affect
the status of either REMIC Pool as a REMIC. Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee may
require an Opinion of Counsel and a Nondisqualification Opinion (in the case of
clauses (i), (ii) and (iii), at the expense of the Depositor, and otherwise at
the expense of the party requesting such amendment, except that if the Trustee
requests such amendment, such amendment shall be at the expense of the
Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such confirmation as the basis therefor). The placement of an
"original issue discount" legend on, or any change required to correct any such
legend previously placed on, a Certificate shall not be deemed an amendment to
this Agreement.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 13.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the parties
with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate the Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's obligation to Advance or
alter the Servicing Standard except as may be necessary or desirable to comply
with the REMIC Provisions or (iv) adversely affect the status of either REMIC
Pool as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion) without the consent of 100% of the
Certificateholders (including the Class R-I and Class R-II Certificateholders);
provided that no such amendment may modify Section 8.18 of this Agreement
without Rating Agency Confirmation. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(c) is permitted by this Agreement at the
expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may not be amended in any
manner that is reasonably likely to have a material adverse effect on the
Primary Servicer without first obtaining the written consent of the Primary
Servicer.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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 WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received by
(A) in the case of the Depositor, Morgan Stanley Dean Witter Capital I Inc.,
1585 Broadway, New York, New York 10036, Attention: Cecilia Tarrant, with a copy
to: Morgan Stanley Dean Witter Capital I Inc., 1585 Broadway, New York, New York
10036, Attention: General Counsel; (B) in the case of the Trustee and the Fiscal
Agent at the Corporate Trust Office; (C) in the case of the Master Servicer,
Wells Fargo Bank, National Association, 420 Montgomery Street, 5th floor, San
Francisco, California 94104. Attention: Commercial Mortgage Servicing (or, after
October 16, 2000, 45 Fremont Street, 2nd Floor, San Francisco, California
94105), with a copy to Robert F. Darling, Esq., Wells Fargo Bank National
Association, 633 Folsom Street, 7th Floor, San Francisco, California 94111; (D)
in the case of the Special Servicer, Principal Capital Management LLC, 801 Grand
Avenue, Des Moines, Iowa 50392, Attention: Diane McGuire, with a copy to Karen
Pearston, Esq.; or as to each party such other address as may hereafter be
furnished by such party to the other parties in writing. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating Agencies,
Special Servicer and the Operating Adviser of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 13.3 hereof;
(ii) the Initial Certification and the Final Certification required
pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan pursuant to Section
2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special Servicer or the
Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master Servicer, the Fiscal
Agent, the Trustee or the Special Servicer pursuant to Section 7.7 or 7.14
hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the Mortgaged
Properties;
(viii) the making of a final payment pursuant to Section 10.3 hereof;
and
(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to S&P, to:
Standard & Poor's Ratings Services
55 Water Street
New York, NY 10041
Attention: Commercial Mortgage Surveillance Manager
If to Moody's, to:
Moody's Investor Services, Inc.
99 Church Street
New York, NY 10007
Attention: CMBS Monitoring
If to any other Rating Agency, at such address as shall be provided in
writing to the Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section 7.6;
or
(ii) the appointment of a successor trustee pursuant to Section 7.7; or
(iii) the appointment of a successor Operating Adviser pursuant to
Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and shall deliver to the Primary Servicer and the Special
Servicer each of the reports required to be delivered by the Master Servicer to
the Primary Servicer and the Special Servicer pursuant to the terms of this
Agreement. If the Master Servicer or Special Servicer cannot obtain insurance at
commercially reasonable rates, the Master Servicer shall deliver to the Rating
Agencies' notice of such fact identifying each Mortgaged Property, the type of
insurance not maintained and the rationale for determining such insurance was
not available at commercially reasonable rates. The Trustee and Special Servicer
shall deliver to the Rating Agencies and the Depositor any information as
reasonably requested by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, Master Servicer or Trustee shall be given by such parties,
respectively, on a best efforts basis and only as a matter of courtesy and
accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property 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 Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and investment property consisting of, arising from or
relating to any of the property described in clauses (1)-(4) below: (1) the
Mortgage Loans, including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies identified on the
Mortgage Loan Schedule, including all Qualified Substitute Mortgage Loans, all
distributions with respect thereto payable on and after the Cut-Off Date, and
the Mortgage Files; (2) the Distribution Account, all REO Accounts, and the
Certificate Account, including all property therein and all income from the
investment of funds therein (including any accrued discount realized on
liquidation of any investment purchased at a discount); (3) the REMIC I Regular
Interests; and (4) the Mortgage Loan Purchase Agreement;
(ii) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit, investment property, and other rights arising from or
by virtue of the disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons with respect
to, all or any part of the collateral described in clause (A) above (including
any accrued discount realized on liquidation of any investment purchased at a
discount); and
All cash and non-cash proceeds of the collateral described in clauses
(i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, 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 the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. In connection herewith, the Trustee
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the Master Servicer at the expense of the Trust as an Additional
Trust Expense, but only upon direction of the Depositor accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Seller is paying the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates.
SECTION 13.15 [Reserved]
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
MORGAN STANLEY DEAN WITTER CAPITAL I
INC., as Depositor
By:
---------------------------------
Name:
Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By:
---------------------------------
Name:
Title:
PRINCIPAL CAPITAL MANAGEMENT, LLC., as
Special Servicer
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __th day of September, 2000, before me, a notary public in and
for said State, personally appeared _____________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Morgan Stanley
Dean Witter Capital I Inc., and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this ___th day of September, 2000, before me, a notary public in and
for said State, personally appeared ____________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as _______________ of Wells Fargo Bank, National
Association and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of September, 2000, before me, a notary public in and
for said State, personally appeared ___________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as ______________ on behalf of Principal Capital Management,
LLC and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of September, 2000, before me, a notary public in and
for said State, personally appeared ___________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as ______________ on behalf of Principal Capital Management,
LLC and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of September, 2000, before me, a notary public in and
for said State, personally appeared __________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as _______________________ on behalf of LaSalle
Bank National Association and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of September, 2000, before me, a notary public in and
for said State, personally appeared __________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as ________________ on behalf of ABN AMRO Bank
N.V. and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of September, 2000, before me, a notary public in and
for said State, personally appeared __________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as _______________ on behalf of ABN AMRO Bank
N.V. and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------
Notary Public
<PAGE>
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS ___ CERTIFICATES AS OF THE
CLOSING DATE: ___________ CUSIP NO. _______________
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
NO. 1
$______________
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-1 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-1 Certificates. The Certificates are designated as the Morgan Stanley
Dean Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-PRIN and are issued in 18 Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ____________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
NO. 1
$______________
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-2 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-2 Certificates. The Certificates are designated as the Morgan Stanley
Dean Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-PRIN and are issued in 18 Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: _____________________________________
AUTHORIZED OFFICER
Dated: September ___, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-3
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS ___ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. _______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
NO. 1
$______________
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-3 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-3 Certificates. The Certificates are designated as the Morgan Stanley
Dean Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-PRIN and are issued in 18 Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ____________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-4
[FORM OF CLASS A-4 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS ___ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
NO. 1
$______________
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class A-4 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-4 Certificates. The Certificates are designated as the Morgan Stanley
Dean Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-PRIN and are issued in 18 Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ____________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-5
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PRIMARY
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. _______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class B Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September ___, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-6
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PRIMARY
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. _______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class C Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-7
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PRIMARY
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class D Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------------------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-8
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PRIMARY
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL
CAPITAL MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL
CLOSING DATE: SEPTEMBER __, 2000 CAPITAL MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, 2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS
_____ CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: __________
[CUSIP NO. __________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ___________]
CERTIFICATE AS OF THE CLOSING DATE:
__________ NO. 1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class E Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
______________________________________________________ account number
______________ or, if mailed by check, to
_______-________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-9
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER __, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class F Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-10
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class G Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class G Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-11
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1\
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class H Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class H Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-12
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
CERTIFICATE BALANCE OF THIS CLASS _____ [CINS NO. ________________]
CERTIFICATE AS OF THE CLOSING DATE:
$______________ NO. 1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class J Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class J Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-13
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
[CINS NO. ________________]
CERTIFICATE BALANCE OF THIS CLASS _____
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$______________
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class K Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-14
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
[CINS NO. ________________]
CERTIFICATE BALANCE OF THIS CLASS _____
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$______________
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class L Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-15
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENTS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
[CINS NO. ________________]
CERTIFICATE BALANCE OF THIS CLASS _____
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$______________
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class M Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class M Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 23rd
day of each month or, if such 23rd day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
<PAGE>
EXHIBIT A-16
[RESERVED]
<PAGE>
EXHIBIT A-17
[RESERVED]
<PAGE>
EXHIBIT A-18
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON EXCEPT AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A UNITED STATES PERSON WITHIN THE MEANING OF
SECTION 7701(A)(30) OF THE CODE, UNLESS (I) SUCH PERSON WILL HOLD THIS CLASS R-I
CERTIFICATE IN CONNECTION WITH THE CONDUCT OF A TRADE OR BUSINESS WITHIN THE
UNITED STATES AND HAS FURNISHED AN EFFECTIVE INTERNAL REVENUE SERVICE FORM 4224
OR FORM W-SECI OR (II) SUCH PERSON HAS FURNISHED THE TRANSFEROR AND CERTIFICATE
REGISTRAR WITH AN OPINION OF COUNSEL THAT THE TRANSFER OF THE CLASS R-I
CERTIFICATE TO SUCH PERSON WILL NOT BE DISREGARDED FOR FEDERAL INCOME TAX
PURPOSES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
NON-UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
DISQUALIFIED NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO
ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A DISQUALIFIED NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A DISQUALIFIED NON-UNITED STATES PERSON, OR TO ANY
OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT,
SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
[CINS NO. ________________
CERTIFICATE BALANCE OF THIS CLASS _____
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$______________
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-I Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Dean Witter Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN and are issued in 18 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 23rd day of each month or, if such 23rd day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions no more than five business days
after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
EXHIBIT A-19
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON EXCEPT AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A UNITED STATES PERSON WITHIN THE MEANING OF
SECTION 7701(A)(30) OF THE CODE, UNLESS (I) SUCH PERSON WILL HOLD THIS CLASS R-I
CERTIFICATE IN CONNECTION WITH THE CONDUCT OF A TRADE OR BUSINESS WITHIN THE
UNITED STATES AND HAS FURNISHED AN EFFECTIVE INTERNAL REVENUE SERVICE FORM 4224
OR FORM W-SECI OR (II) SUCH PERSON HAS FURNISHED THE TRANSFEROR AND CERTIFICATE
REGISTRAR WITH AN OPINION OF COUNSEL THAT THE TRANSFER OF THE CLASS R-I
CERTIFICATE TO SUCH PERSON WILL NOT BE DISREGARDED FOR FEDERAL INCOME TAX
PURPOSES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
NON-UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
DISQUALIFIED NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO
ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A DISQUALIFIED NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A DISQUALIFIED NON-UNITED STATES PERSON, OR TO ANY
OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT,
SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
[CINS NO. ________________
CERTIFICATE BALANCE OF THIS CLASS _____
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$______________
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class R-II Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Dean Witter Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN and are issued in 18 Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 23rd day of each month or, if such 23rd day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions no more than five business days
after the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
EXHIBIT A-20
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLER, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) SEPTEMBER ___, 2000, THIS CERTIFICATE 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 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
<PAGE>
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN
INITIAL PASS-THROUGH RATE: ___% MASTER SERVICER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 1, 2000 SPECIAL SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CUT-OFF DATE: SEPTEMBER 1, 2000
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: SEPTEMBER __, 2000 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: OCTOBER 23, TRUSTEE: LASALLE BANK NATIONAL
2000 ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS _____ CERTIFICATES AS OF THE
CLOSING DATE: ___________ [CUSIP NO. ______________]
[CINS NO. ________________
CERTIFICATE BALANCE OF THIS CLASS _____
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$______________
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial mortgage loans (the "Mortgage Loans") and certain other
property, formed and sold by
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
THIS CERTIFIES THAT _______________ is the registered owner of the interest
evidenced by this Certificate in the Class X Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X Certificates. The Certificates are designated as the Morgan Stanley Dean
Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN and are issued in 18 Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the 23rd day of each month
or, if such 23rd day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By: ______________________________________
AUTHORIZED OFFICER
Dated: September __, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------------------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
September __, 2000
Morgan Stanley Dean Witter Capital I Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392
Principal Life Insurance Company
801 Grand Avenue
Des Moines, Iowa 50392
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Morgan Stanley Dean Witter Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN
------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans and the REMIC I Regular Interests.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee
By: ______________________________________
Name:
Title:
<PAGE>
SCHEDULE OF EXCEPTIONS
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 2000
Morgan Stanley Dean Witter Capital I Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392
Principal Life Insurance Company
801 Grand Avenue
Des Moines, Iowa 50392
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Morgan Stanley Dean Witter Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-PRIN
------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (v) and (viii) of the definition of "Mortgage File," and any documents
required to be included in the Mortgage File pursuant to all other clauses of
the definition of "Mortgage File," to the extent known by a Responsible Officer
of the Trustee to be required pursuant to the Pooling and Servicing Agreement,
are in its possession, (b) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, (c) based on its
examination and only as to the Mortgage Note and the Mortgage, the street
address of the Mortgaged Property and the name of the Mortgagor set forth in the
Mortgage Loan Schedule accurately reflects the information contained in the
documents in the Mortgage File, and (d) each Mortgage Note has been endorsed and
each Assignment of Mortgage has been delivered as provided in clause (i) and
clause (iv), respectively, of the definition of "Mortgage File" contained in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Trustee Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans and the REMIC I Regular Interests.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee
By: ______________________________________
Name:
Title:
<PAGE>
SCHEDULE OF EXCEPTIONS
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee
Corporate Trust Office
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attn: Asset-Backed Securities Trust Services Group
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-PRIN
----------------------------------------------------
DATE:__________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of September
1, 2000 by and among Morgan Stanley Dean Witter Capital I Inc., as Depositor,
Wells Fargo Bank, National Association, as Master Servicer, Principal Capital
Management, LLC as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the "Pooling and Servicing
Agreement"), the undersigned hereby requests a release of the Trustee Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have
been or will be, following the [Master] [Special] Servicer's
release of the Trustee Mortgage File, credited to the
Certificate Account or the Distribution Account pursuant to
the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File
will be held by the undersigned in accordance with the provisions of the Pooling
and Servicing Agreement and will be returned to you, except if the Mortgage Loan
has been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By: ______________________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN, Class __ (the
"Certificates")
--------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Certificates [having an initial Certificate Balance or Notional Amount
as of September __, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Transferred Certificates were issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2000, among Morgan Stanley Dean Witter Capital I Inc., as depositor
(the "Depositor"), Wells Fargo Bank, National Association, as master servicer,
Principal Capital Management, LLC, as special servicer, LaSalle Bank National
Association, as trustee and ABN AMRO Bank N.V., as fiscal agent. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of any
Transferred Certificate under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of any Transferred
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Transferred Certificate pursuant to the Securities Act or any state securities
laws.
Very truly yours,
__________________________________________
(Transferor)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial Certificate Principal Balance or
Notional Amount as of September __, 2000 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of September 1,
2000 (the "Pooling and Servicing Agreement"), among Morgan Stanley Dean Witter
Capital I Inc., as depositor (the "Depositor"), Wells Fargo Bank, National
Association, as master servicer, Principal Capital Management, LLC, as special
servicer, LaSalle Bank National Association, as trustee and ABN AMRO Bank N.V.,
as fiscal agent. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "Securities Act") and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Certificates is being made in reliance on Rule 144A. The Transferee
is acquiring the Transferred Certificates for its own account or for the account
of a Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases for its
own account or for the account of a Qualified Institutional Buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans, (d)
the Pooling and Servicing Agreement, (e) any credit enhancement mechanism
associated with the Transferred Certificates and (f) all related matters that it
has requested.
3. The Transferee represents as follows: (i) it is neither a Plan
nor any person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of, a Plan; (ii) the purchase and holding of such Certificate or interest
therein by the Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) it has provided the
Certificate Registrar with a certification of facts and an opinion of counsel
which establish that such transfer will not result in a violation of Section 406
of ERISA or Section 4975 of the Code or result in the imposition of an excise
tax under Section 4975 of the Code or subject the Trustee, the Master Servicer,
the Special Servicer or the Certificate Registrar to any obligation in addition
to those undertaken in the Pooling and Servicing Agreement.
4. If the Transferee is purchasing a Class X Certificate, the
Transferee is covered by the exemption issued to the Initial Purchaser, which is
referenced in the Private Placement Memorandum.
Very truly yours,
__________________________________________
(Transferee)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
<PAGE>
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
______________________________________________________
______________________________________________________
______________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate Yes
No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
__________________________________________
Print Name of Transferee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
<PAGE>
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked below,
the Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the
same parent or because one investment adviser is a majority owned
subsidiary of the other).
____ The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of
the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were
excluded.
3. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates
only for the Transferee's own account?
4. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
5. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:_______________________________________
Name:
Title:
IF AN ADVISER:
__________________________________________
Print Name of Transferee
Date:_____________________________________
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN (the "Certificates")
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates [having an initial Certificate
Principal Balance as of September __, 2000 (the "Closing Date") of
$__________][evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of September 1, 2000 (the "Pooling and Servicing Agreement"), among Morgan
Stanley Dean Witter Capital I Inc., as depositor (the "Depositor"), Wells Fargo
Bank, National Association, as master servicer, Principal Capital Management,
LLC, as special servicer, LaSalle Bank National Association, as trustee and ABN
AMRO Bank N.V., as fiscal agent. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for
its own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates
to which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
D-1 to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an opinion of counsel satisfactory to the Certificate
Registrar with respect to the availability of such exemption from registration
under the Securities Act, together with copies of the written certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED IN
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in 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, or (e) taken any other
action with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security, which (in the case of any
of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
7. The Transferee is an "accredited investor" as defined in any
of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or
an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
8. The Transferee represents as follows: (i) it is neither a Plan
nor any person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by the Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) it has
provided the Certificate Registrar with a certification of facts and an opinion
of counsel which establish that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code or subject the Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar to any obligation in
addition to those undertaken in the Pooling and Servicing Agreement.
9. If the Transferee is purchasing a Class X Certificate, the
Transferee is covered by the exemption issued to the Initial Purchaser, which is
referenced in the Private Placement Memorandum.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN, Class __ (the
"Certificates")
--------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of September ___, 2000 (the "Closing
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2000, among Morgan Stanley Dean Witter Capital I Inc., as depositor
(the "Depositor"), Wells Fargo Bank, National Association, as master servicer,
Principal Capital Management, LLC, as special servicer, LaSalle Bank National
Association, as trustee and ABN AMRO Bank N.V., as fiscal agent. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, and for the benefit of the Depositor, the Certificate Registrar
and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for
its own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or (ii)
sold or transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST
THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. Neither the Transferee 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 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, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate, any interest in any Certificate or any similar
security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
8. The Transferee represents as follows: (i) it is neither a Plan
nor any person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of, a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by the Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) it has
provided the Certificate Registrar with a certification of facts and an opinion
of counsel which establish that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code or subject the Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar to any obligation in
addition to those undertaken in the Pooling and Servicing Agreement.
9. If the Transferee is purchasing a Class X Certificate, the
Transferee is covered by the exemption issued to the Initial Purchaser, which is
referenced in the Private Placement Memorandum.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN, Class ____ (the
"Certificates")
-------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of September __, 2000 (the "Closing
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2000, among Morgan Stanley Dean Witter Capital I Inc., as depositor
(the "Depositor"), Wells Fargo Bank, National Association, as master servicer,
Principal Capital Management, LLC, as special servicer, LaSalle Bank National
Association, as trustee and ABN AMRO Bank N.V., as fiscal agent. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, and for the benefit of the Depositor, the Certificate Registrar
and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificate for its own account or
for the account of a qualified institutional buyer, and understands that such
Certificate or any interest therein may be resold, pledged or transferred only
(i) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee understands that (a) the Class of Certificates
to which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and the
Certificate Owner desiring to effect such transfer has received either (A) a
certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing Agreement)
setting forth the facts surrounding the transfer or (B) an opinion of counsel
with respect to the availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
<PAGE>
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
6. The Transferee represents as follows: (i) it is neither a Plan
nor any person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of, a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by the Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) it has
provided the Certificate Registrar with a certification of facts and an opinion
of counsel which establish that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code or subject the Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar to any obligation in
addition to those undertaken in the Pooling and Servicing Agreement.
7. If the Transferee is purchasing a Class X Certificate, the
Transferee is covered by the exemption issued to the Initial Purchaser, which is
referenced in the Private Placement Memorandum.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
<PAGE>
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and [name of Certificate Registrar] as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
______________________________________________________
______________________________________________________
______________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate Yes
No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
__________________________________________
Print Name of Transferee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
<PAGE>
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Certificate
Registrar and the Trustee, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked below,
the Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate Yes
No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:_______________________________________
Name:_____________________________________
Title:____________________________________
IF AN ADVISER:
__________________________________________
Print Name of Transferee
Date:_____________________________________
<PAGE>
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Morgan Stanley Dean Witter
Capital I INC., Mortgage Pass-Through Certificates, Series 2000-PRIN, Class
[R-I] [R-II], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement pursuant to which the Residual Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is not, and as of the date of transfer will
not be, a "Disqualified Organization" and will endeavor not to become a
"Disqualified Organization" for so long as it holds the Residual Certificates,
and (ii) is acquiring the Residual Certificates for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit. A "Disqualified
Organization" means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality, all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of such
foreign government or organization, any rural electric or telephone cooperative,
or any organization (other than certain farmers' cooperatives) that is generally
exempt from federal income tax unless such organization is subject to the tax on
unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed
on transfers of the Residual Certificates to "disqualified organizations" under
the Code that applies to all transfers of the Residual Certificates; (ii) that
such tax would be on the transferor or, if such transfer is through an agent
(which Person includes a broker, nominee or middleman) for a non-Permitted
Transferee, on the agent; (iii) that the Person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
Person an affidavit that the transferee is a Permitted Transferee and, at the
time of transfer, such Person does not have actual knowledge that the affidavit
is false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section 3.3(e)
of the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificates (in particular, clause (F) of Section 3.3(e)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (G) of Section 3.3(e) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any
sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee is a "United States person" within the meaning
of Section 7701(a)(30) of the Code, unless (i) it has furnished an effective
Internal Revenue Service Form 4227 (or successor form) to the effect that it
will hold the Residual Certificates in connection with the conduct of a trade or
business within the United States, or (ii) it has furnished to the transferor of
the Residual Certificates and to the Certificate Registrar an opinion of counsel
that the transfer of the Residual Certificates to the transferor will not be
disregarded for federal income tax purposes.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this day
of ___________, ____.
[NAME OF TRANSFEREE]
By:______________________________
[Name of Officer]
[Title of Officer]
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ______________________ before me, _____________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared __________________________________________________
Name(s) of Document Signer(s)
______________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 20__
LaSalle Bank National Association,
as Certificate Registrar
Corporate Trust Office
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60674
Re: Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN (the "Certificates")
----------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] Certificates evidencing a ____% Percentage Interest in
such Class (the "Residual Certificates"). The Certificates, including the
Residual Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of September 1, 2000 (the "Pooling and Servicing
Agreement"), among Morgan Stanley Dean Witter Capital I Inc., as Depositor,
Wells Fargo Bank, National Association, as Master Servicer, Principal Capital
Management, LLC as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
___________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN, CLASS ___ (THE "CERTIFICATES")
TO: Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
Clearstream Banking
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Certificates held by you or on your behalf for
our account are beneficially owned by (a) non -U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 20___
By: ________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
<PAGE>
EXHIBIT G
FORM OF PRIMARY SERVICING AGREEMENT
----------------------------------
PRIMARY SERVICING AGREEMENT
DATED AS OF SEPTEMBER 1, 2000
----------------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
PRINCIPAL CAPITAL MANAGEMENT, LLC
as Primary Servicer,
PRINCIPAL CAPITAL MANAGEMENT, LLC
as Special Servicer
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
among
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
PRINCIPAL CAPITAL MANAGEMENT, LLC
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION
as Trustee
and
ABN AMRO BANK, N.V.
as Fiscal Agent
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-PRIN
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.....................................................
ARTICLE II PRIMARY SERVICING..............................................
Section 2.1 Primary Servicing.........................................
Section 2.2 Standard of Care..........................................
Section 2.3 Compensation and Other Payments to the Primary Servicer...
Section 2.4 Primary Servicer Representations and Warranties...........
ARTICLE III DOCUMENTS AND OTHER MATTERS...................................
Section 3.1 Segregation of Mortgage Loan Documents....................
Section 3.2 Access to Documents; Provision of Certain Information.....
ARTICLE IV MASTER SERVICER ASSISTANCE.....................................
Section 4.1 Master Servicer Assistance................................
Section 4.2 Specially Serviced Mortgage Loans.........................
ARTICLE V ADDITIONAL PRIMARY SERVICER COVENANTS...........................
Section 5.1 Notice of Litigation......................................
Section 5.2 No Personal Solicitation..................................
Section 5.3 Annual Officer's Certificate as to Compliance.............
Section 5.4 Annual Independent Accountants' Servicing Report..........
Section 5.5 Fidelity Bond and Errors and Omissions Insurance Policy...
Section 5.6 Primary Servicer's Financial Statements and Related
Information..............................................
Section 5.7 No Advancing..............................................
Section 5.8 REMIC Compliance..........................................
Section 5.9 Inspection Rights.........................................
Section 5.10 Authorized Officer........................................
Section 5.11 [Reserved]................................................
Section 5.12 Additional Reports........................................
Section 5.13 Prepayments...............................................
Section 5.14 Consents..................................................
ARTICLE VI PRIMARY SERVICER DEFAULT; TERMINATION; POST-TERMINATION
OBLIGATIONS
Section 6.1 Primary Servicer Default..................................
Section 6.2 Termination...............................................
Section 6.3 Post-Termination Obligations..............................
Section 6.4 Additional Termination....................................
ARTICLE VII SUBCONTRACTORS................................................
ARTICLE VIII PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER....
ARTICLE IX INDEMNIFICATION................................................
Section 9.1 Primary Servicer's Indemnity..............................
Section 9.2 Master Servicer's Indemnity...............................
ARTICLE X MISCELLANEOUS...................................................
Section 10.1 Severability.............................................
Section 10.2 Rights Cumulative; Waivers...............................
Section 10.3 Headings.................................................
Section 10.4 Construction.............................................
Section 10.5 Assignment...............................................
Section 10.6 Resignation of Primary Servicer..........................
Section 10.7 Prior Understandings.....................................
Section 10.8 Integrated Agreement.....................................
Section 10.9 Counterparts.............................................
Section 10.10 Governing Laws...........................................
Section 10.11 Notices..................................................
Section 10.12 Amendment................................................
Section 10.13 Other....................................................
<PAGE>
This PRIMARY SERVICING AGREEMENT, dated and effective as of
September 1, 2000, by and between PRINCIPAL CAPITAL MANAGEMENT, LLC (in its
capacity of primary servicer, the "Primary Servicer", and in its capacity of
special servicer, the Special Servicer") and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, acting solely in its capacity as
Master Servicer under the Pooling and Servicing Agreement (as defined below)
(the "Master Servicer").
WHEREAS, MORGAN STANLEY DEAN WITTER CAPITAL I INC., as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION, as master servicer, PRINCIPAL CAPITAL
MANAGEMENT, LLC, as special servicer, ABN AMRO BANK, N.V., as fiscal agent, and
LASALLE BANK NATIONAL ASSOCIATION, as trustee, have entered into a Pooling and
Servicing Agreement, dated as of September 1, 2000, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2000-PRIN (as amended, from time to
time, the "Pooling and Servicing Agreement"), a copy of which is attached hereto
as Exhibit A;
WHEREAS, the Master Servicer desires that the Primary Servicer act
as Primary Servicer with respect to the mortgage loans listed on Schedule I
hereto (each a "Mortgage Loan") and provide, on behalf of the Master Servicer,
the necessary servicing of the Mortgage Loans performed in a manner consistent
with the Servicing Standard and in a manner consistent with this Agreement and
the Pooling and Servicing Agreement from the Closing Date until this Agreement
is terminated in accordance herewith; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Primary Servicer and the Master Servicer hereby
agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings set forth below. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement, provided that
terms contained in the Pooling and Servicing Agreement pertaining to a
particular mortgage loan shall be deemed to pertain to the related Mortgage Loan
that is the subject of this Agreement.
"AGREEMENT": This Primary Servicing Agreement, as modified,
amended and supplemented from time to time, including all exhibits, schedules
and addenda hereto.
"ANNUAL STATEMENT AND RENT ROLL REPORTING": Copies of annual
financial statements and rent rolls collected with respect to the Mortgaged
Properties securing the Mortgage Loans to be made available with the Operating
Statement Analysis by the Primary Servicer to the Master Servicer.
"CATEGORY 1 CONSENT ASPECT": means a condition, term or provision of
a Category 1 Request that requires, or specifies a standard of, consent, or
approval of the applicable mortgagee under the Loan Documents, but shall
explicitly exclude any such conditions, terms or provisions enumerated in (a) an
escrow or reserve agreement for disbursements made from an escrow or reserve
account or an extension of time to complete repairs, replacements or
improvements in accordance with the terms and conditions set forth in Exhibit
B-2(c); (b) an assignment and assumption request covered under Section
A.1.(c)(ii) of Exhibit B-2(c) of this Agreement; (c) an additional lien,
monetary encumbrance or mezzanine financing request covered under Section
A.1.(c)(iii) of Exhibit B-2(c) of this Agreement; or (d) a defeasance request
covered under Section A.1.(c)(i) of Exhibit B-2(c) of this Agreement.
"CATEGORY 1 REQUEST": As defined in the Post Closing Matters
Description in Exhibit B-2(c).
"CATEGORY 2 REQUEST": As defined in the Post Closing Matters
Description in Exhibit B-2(c).
"CATEGORY 3 REQUEST": As defined in the Post Closing Matters
Description in Exhibit B-2(c).
"CMSA FINANCIAL FILE": A report which is one element of the CMSA
Investor Reporting Package and the form of which can be found on the web site of
the Commercial Mortgage Securities Association at www.cmbs.org by following the
links to Investor Reporting Package.
"CMSA INVESTOR REPORTING PACKAGE": The Commercial Mortgage
Securities Association Investor Reporting Package, certain forms of which are
attached to this Agreement as Exhibit B-5 and elements of which shall be
produced as provided in Section 2.1(c) and the Task Description.
"CMSA LOAN PERIODIC UPDATE FILE": A report which is one element of
the CMSA Investor Reporting Package and the form of which is attached to this
Agreement as Exhibit B-5(b).
"CMSA LOAN SETUP FILE": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to this Agreement
as Exhibit B-5(a).
"CMSA PROPERTY FILE": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to this Agreement
as Exhibit B-5(c).
"COMPARATIVE FINANCIAL STATUS REPORT": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to this Agreement as Exhibit B-5(e).
"DAY ONE REPORT": With respect to each Mortgage Loan, a statement in
the form of Exhibit B-1(c) setting forth the scheduled payments of interest and
principal and the amount of any unanticipated prepayments of which the Primary
Servicer has received notice, indicating the Mortgage Loan and on account of
what type of payment such amount is to be applied on behalf of the related
Mortgagor.
"DELINQUENT LOAN STATUS REPORT": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to this Agreement as Exhibit B-5(f).
"HISTORICAL LIQUIDATION REPORT": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to this Agreement as Exhibit B-5(i).
"HISTORICAL LOAN MODIFICATION REPORT": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to this Agreement as Exhibit B-5(h).
"LOAN DOCUMENTS": As defined in the Post Closing Matters Description
in Exhibit B-2.
"MATERIALITY DETERMINATION": means with respect to a Category 1
Request, Master Servicer's determination, exercised in good faith using the
Servicing Standard, whether a Category 1 Consent Aspect is material and should
be referred to the Special Servicer for consent in accordance with this
Agreement.
"MORTGAGE LOAN": means a Mortgage Note secured by a Mortgage, and
all amendments and modifications thereof, identified on the schedule attached to
this Agreement as Schedule 1, as amended from time to time, and conveyed,
transferred, sold, assigned to or deposited with the Trustee pursuant to Section
2.1 or Section 2.3 of the Pooling and Servicing Agreement, and Mortgage Loan
shall also include any Defeasance Loan.
"MASTER SERVICER": As defined in the preamble to this Agreement.
"MASTER SERVICER SERVICING DOCUMENTS": means a copy of the documents
contained in the Mortgage File for the Mortgage Loans.
"NON-MANDATORY PREPAYMENT DATE MORTGAGE LOAN": As defined in Section
5.13 below.
"OFFICER'S CERTIFICATE": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President or an employee designated as a Servicing Officer
pursuant to this Agreement.
"OPERATING STATEMENT ANALYSIS": means a report which is one element
of the MBA/CMSA Methodology for Analyzing and Reporting Property Income
Statements, which is part of the CMSA Investor Reporting Package and the form of
which is attached to this Agreement as Exhibit B-5(j).
"PAYMENT AND COLLECTION DESCRIPTION": The description of the
obligations of the Primary Servicer with respect to collection and remittance of
payments on the Mortgage Loans as more particularly described in Section 2.1(c)
below.
"PAYMENT AND MORTGAGE LOAN STATUS REPORTS": The form of reports to
be submitted by Primary Servicer with respect to reporting about collection and
remittance of payments, status of real estate taxes, status of insurance, status
of UCC financing statements and delinquencies for the Mortgage Loans as more
particularly described and set forth on Exhibit B-1.
"POA NOTICE": As defined in the Post Closing Matters Description
in Exhibit B-2.
"POOLING AND SERVICING AGREEMENT": As defined in the preamble to
this Agreement.
"POST CLOSING MATTERS DESCRIPTION": The description of the
obligations of the Primary Servicer and Master Servicer with respect to requests
from Mortgagors on Mortgage Loans that have not become Defaulted Mortgage Loans,
a Specially Serviced Mortgage Loan or one on which a Servicing Transfer Event
has occurred, which obligations are more particularly described and set forth on
Exhibit B-2.
"POST CLOSING REQUEST": As defined in the Post Closing Matters
Description in Exhibit B-2.
"POWER OF ATTORNEY": As defined in Section 4.2 of this Agreement.
"PRIMARY SERVICER COLLECTION ACCOUNT": means an account which is an
Eligible Account established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Capital Management, LLC, as Primary
Servicer for Wells Fargo Bank, National Association, as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Morgan Stanley
Dean Witter Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-PRIN."
"PRIMARY SERVICER DEFAULT": As defined in Section 6.1 hereof.
"PRIMARY SERVICER ERRORS AND OMISSIONS INSURANCE POLICY": As defined
in Section 5.5(a) hereof.
"PRIMARY SERVICER FIDELITY BOND": As defined in Section 5.5(a)
hereof.
"PRIMARY SERVICER P&I ADVANCE": Any advance made by the Primary
Servicer under Section 5.7(b).
"PRIMARY SERVICER REMITTANCE DATE": means, for each Distribution
Date, four (4) Business Days immediately preceding such Distribution Date.
"PRIMARY SERVICER SERVICING DOCUMENTS": means (a) a copy of the
documents contained in the Mortgage File for the Mortgage Loans and (b) all
other servicing documents and records in possession of Primary Servicer that
relate to or are used for the servicing of the Mortgage Loans and that are not
required to be part of the applicable Mortgage File.
"PRIMARY SERVICING FEE": For each calendar month, as to each
Mortgage Loan, the portion of the Primary Servicing Fee Rate applicable to such
month (determined in the same manner as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of each Mortgage Loan immediately before the Due Date
occurring in such month, but prorated for the number of days during the calendar
month for such Mortgage Loan for which interest actually accrues on the Mortgage
Loan and only from collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE": A rate of 0.04875% per annum with
respect to each Mortgage Loan.
"PRIMARY SERVICING TERMINATION DATE": As defined in Section 6.2
hereof.
"PROPERTY INSPECTION DESCRIPTION": The description of the
obligations of the Primary Servicer with respect to inspection of the Mortgaged
Properties for each of the Mortgage Loans as more particularly described in
Section 2.1(d) below and Exhibit B-3.
"REO STATUS REPORT": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to this Agreement as Exhibit B-5(g).
"REQUIREMENTS LIST": As defined in the Post Closing Matters
Description in Exhibit B-2.
"SERVICER WATCH LIST": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to this Agreement as Exhibit B-5(d) the contents of which are
set forth in Section 8.11(h) of the Pooling and Servicing Agreement.
"SERVICES": Those activities to be provided by the Primary
Servicer for the Servicing of the Mortgage Loans pursuant to the provisions
of this Agreement.
"SERVICING": With respect to any Mortgage Loan, the right and
obligation of the Primary Servicer to administer such Mortgage Loan in
accordance with the provisions hereof.
"SERVICING DOCUMENTS": means the Master Servicer Servicing
Documents and Primary Servicer Servicing Documents.
"SERVICING OFFICER": Any officer or employee of the Primary Servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name and specimen signature appear on a list of servicing
officers or employees furnished to the Master Servicer by the Primary Servicer
and signed by an officer of the Primary Servicer, as such list may from time to
time be amended.
"SPECIAL SERVICER": Principal Capital Management, LLC or any
successor thereto as special servicer under the Pooling and Servicing
Agreement.
"SERVICING STANDARD": means, with respect to the Primary
Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care, skill,
prudence and diligence with which the Primary Servicer services and administers
similar mortgage loans for other third-party portfolios, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own mortgage loans and
to the maximization of the net present value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Primary Servicer
uses for loans which it owns and which are similar to the Mortgage Loans, giving
due consideration to the maximization of the net present value of the mortgage
loans;
but without regard to:
(1) any other relationship that the Primary Servicer or any of
its Affiliates may have with the related Mortgagor or any Affiliate of the
Mortgagor, the Depositor or any Seller;
(2) the ownership of any Certificate by the Primary Servicer
or any of its Affiliates;
(3) the Master Servicer's, Fiscal Agent's or the Trustee's
obligation to make Advances and Servicing Advances as specified in the
Pooling and Servicing Agreement or to incur servicing expenses;
(4) the Primary Servicer's right to receive compensation for
its services under this Agreement or with respect to any particular
transaction;
(5) the ownership or servicing or management for others by the
Primary Servicer of any other mortgage loans or property;
(6) intentionally deleted; or
(7) the ownership of any Junior Indebtedness by the Primary
Servicer or any Affiliate with respect to the Mortgaged Property securing
any Mortgage Loan;
provided, however, that in no event shall such standards be less
than the Servicing Standard set forth in the Pooling and Servicing Agreement to
the extent that the Servicing Standard in the Pooling and Servicing Agreement is
applicable to the Services being rendered pursuant to this Agreement, but this
provision shall not be construed to relate to Persons other than those
enumerated above.
"SUCCESSOR PRIMARY SERVICER": The Person selected by the Master
Servicer upon the termination of the Primary Servicer resulting from any Primary
Servicer Default, if any, who shall thereafter perform the Services with respect
to the Mortgage Loans; provided, that the Master Servicer shall perform all
Services with respect to the Mortgage Loan until such Person, if any, is
selected.
"TASK DESCRIPTION": The outline description of the obligations of
the Primary Servicer, and Master Servicer with respect to the Mortgage Loans as
set forth in Exhibit B-4 attached to this Agreement.
"TRUSTEE": LaSalle Bank National Association or any successor
thereto as trustee under the Pooling and Servicing Agreement.
ARTICLE II
PRIMARY SERVICING
SECTION 2.1 PRIMARY SERVICING. From the Closing Date until the
Primary Servicing Termination Date, Master Servicer hereby authorizes and
directs Primary Servicer to service each Mortgage Loan as primary servicer on
behalf of and at the direction of the Master Servicer as provided in this
Agreement. The Services shall consist of the following:
(a) Primary Servicer shall perform all tasks and
responsibilities necessary to meet the requirements under the Task
Description, the Post Closing Matters Description, Payment and Collection
Description and the Payment and Mortgage Loan Status Reports, in each case
in accordance with the terms of this Agreement and in a manner not
inconsistent with the Pooling and Servicing Agreement. Primary Servicer
shall also perform its obligations under Section 2.1(g) of the Pooling and
Servicing Agreement and the Master Servicer's obligations set forth in
Sections 2.1(c), 2.1(d) and 8.14 of the Pooling and Servicing Agreement
relating to Annual Statement and Rent Roll Reporting with respect to the
Mortgage Loans. If a condition to any modification, waiver, consent or
amendment by the Master Servicer includes a requirement to obtain any
Rating Agency Confirmation, the Primary Servicer shall be responsible for
obtaining such Rating Agency Confirmation. If the Pooling and Servicing
Agreement requires a determination that any action, consent, waiver,
modification or amendment does not constitute a "significant modification"
for federal income tax purposes, the Primary Servicer shall be responsible
for making such determination.
(b) Master Servicer and Primary Servicer agree and acknowledge
that the Task Description is a chart that enumerates a list of tasks and
the general allocation of responsibility of servicing obligations between
the Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing requests of a Mortgagor and allocating responsibility for
handling such requests based upon such classification. Master Servicer and
Primary Servicer have made efforts to reconcile the Task Description and
Post Closing Matters Description. If a condition to any modification,
waiver, consent or amendment by the Master Servicer includes a requirement
to obtain any Rating Agency Confirmation, the Primary Servicer shall be
responsible for obtaining such Rating Agency Confirmation. If the Pooling
and Servicing Agreement requires a determination that any action, consent,
waiver, modification or amendment does not constitute a "significant
modification" for federal income tax purposes, the Primary Servicer shall
be responsible for making such determination.
(c) Without limiting the foregoing, Primary Servicer shall
collect and remit payments on the Mortgage Loans in accordance with the
Payment and Collection Description. For the purposes of this Agreement,
the "Payment and Collection Description" shall encompass all of the
following responsibilities and obligations set forth in the following
subsections (i) through (viii):
(i) On or prior to the Closing Date, the Primary
Servicer shall establish a Primary Servicer Collection Account,
which shall be an Eligible Account, and shall give the Master
Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection
Account is maintained, and the number of the Primary Servicer
Collection Account.
(ii) The Primary Servicer shall make efforts consistent
with the Servicing Standard to collect all monthly payments of
principal (including without limitation Principal Prepayments) and
interest with respect to the Mortgage Loans (except for payments due
on or prior to the Cut-Off Date), as well as Prepayment Premiums,
yield maintenance charges, late charges, Insurance Proceeds,
Condemnation Proceeds and any and all other amounts due from the
Mortgagor or a third party with respect to the Mortgage Loans
pursuant to the Loan Documents (other than any payments that are
made directly to a Person other than the Primary Servicer).
(iii) In the case of any payments received by the
Primary Servicer, the Primary Servicer shall deposit all such
payments (less the applicable Primary Servicing Fee and any other
payments due to Primary Servicer under this Agreement) into the
Primary Servicer Collection Account on or before the next Business
Day after receiving each such payment. As to any Post Determination
Date Mortgage Loan, Primary Servicer P&I Advances and, as to
Mortgage Loan number 37, any amount payable by the Primary Servicer
pursuant to the penultimate sentence of Section 5.7(d) hereof will
be deposited by the Primary Servicer into the Primary Servicer
Collection Account on the Primary Servicer Remittance Date and shall
immediately upon such deposit be remitted by the Primary Servicer to
the Master Servicer.
(iv) Subject to the previous subsection, the Primary
Servicer shall remit to the Master Servicer from the Primary
Servicer Collection Account, by wire transfer of immediately
available funds, all funds in such account (other than income and
earnings on such account), and shall not withdraw funds therefrom
for any other purpose, except to withdraw amounts deposited therein
by error, as follows: (1) In the case of any payments received and
collected during a Collection Period on or before the Determination
Date for such Collection Period, Primary Servicer shall remit such
payments one day after the Determination Date, or, if such day is
not a Business Day, on the next succeeding Business Day, except that
if the payment relates to a Post Determination Date Mortgage Loan,
the payment shall be remitted as described in clause (3) below. (2)
In the case of any payments received and collected by Primary
Servicer after the Determination Date for such Collection Period
(other than the Post Determination Date Mortgage Loans which will be
remitted as a Primary Servicer P&I Advance as described in Section
5.7), Primary Servicer shall remit all such payments on the first
Business Day following collection of the amount of any such
payments, except that, with respect to any Due Date (without regard
to grace periods) in a month, any Scheduled Payment received and
collected for a Due Date (without regard to grace periods) occurring
after such month shall be remitted to Master Servicer in the month
in which such subsequent Due Date occurs in accordance with the
terms of Sections 2.1(c)(iii) and (iv). (3) In the case of payments
received from any Mortgagor on a Post Determination Date Mortgage
Loan, (i) if a Primary Servicer P&I Advance was made by the Primary
Servicer, collections received after the date of such Primary
Servicer P&I Advance and on or before the end of the applicable due
date and grace period, if any, may be retained by the Primary
Servicer as described in Section 5.7 and (ii) all payments not
retained by the Primary Servicer pursuant to the preceding clause
(i) shall be remitted to the Master Servicer within one (1) Business
Day of receipt unless the Master Servicer is then in default of its
obligation to reimburse the Primary Servicer for a Primary Servicer
P&I Advance related to such Mortgage Loan to the extent required
under Section 5.7(b). (4) Amounts deposited as a Primary Servicer
P&I Advance shall be simultaneously withdrawn and remitted to the
Master Servicer. (5) As to Mortgage Loan number 37, if the Primary
Servicer, for the month in which such Mortgage Loan matures,
received the Balloon Payment after the Primary Servicer Remittance
Date, the Primary Servicer (i) shall from such Balloon Payment
either (x) remit to the Master Servicer the amount reimbursed to the
Primary Servicer pursuant Section 5.7(b)(ii) as to such Mortgage
Loan or (y) to the extent the Master Servicer has not reimbursed
such amount to the Primary Servicer pursuant to such Section,
reimburse itself for any advance made pursuant to such Section with
respect to such Loan and (ii) shall remit the remainder of the
Balloon Payment with the amounts advanced by the Primary Servicer
pursuant to the third to last sentence of Section 5.7(b) on the
Primary Servicer Remittance Date in the next succeeding month.
Notwithstanding the foregoing, any unscheduled payments or Balloon
Payments that would cause a Prepayment Interest Shortfall shall be
remitted to the Master Servicer within one (1) Business Day of
receipt. In addition, for any Mortgage Loan with a Due Date on or
after the related Determination Date for which a notice of a
prepayment to occur in the related month has been received by the
Primary Servicer, Primary Servicer shall notify Master Servicer of
the pending prepayment on the Primary Servicer Remittance Date and
Primary Servicer shall remit the prepayment within one (1) Business
Day of its receipt.
(v) In the event any payments received by Primary
Servicer becomes NSF after the moneys associated with that payment
have been remitted to the Master Servicer, the Master Servicer will
return such moneys to Primary Servicer by wire transfer in
immediately available funds within one Business Day of notice from
the Primary Servicer.
(vi) With respect to escrow or reserve payments as
listed on the Task Description, the Primary Servicer shall collect
escrow or reserve amounts with respect to the Mortgage Loans, and
shall deposit such funds in an escrow account, which shall be an
Eligible Account, and shall maintain, disburse and account for such
funds as provided in the Task Description, for real estate taxes,
insurance and reserves, and escrows for repairs, replacements,
principal and interest payments and lease payments, and any other
matters specified in any agreement in which funds are held at the
time, and in the manner and for the purposes as otherwise required
or delineated in the Loan Documents and with respect to the Master
Servicer under the Pooling and Servicing Agreement. The Primary
Servicer may direct the investment of such funds subject to and in
accordance with the criteria set forth in the Pooling and Servicing
Agreement relating to Escrow Accounts. Primary Servicer shall have
the benefit and shall retain all interest and income earned on the
Escrow Accounts for the Mortgage Loans that is not paid to
Mortgagors.
(vii) Primary Servicer shall submit the following
Payment and Mortgage Loan Status Reports in the form attached as
Exhibit B-1: (1) a remittance report for payments received on
Mortgage Loans by electronic mail on each day that payment funds are
wired to the Master Servicer in accordance with Section 2.1(c) of
this Agreement; (2) a delinquency report; (3) a real estate tax
delinquency report (which may be based on information provided by
the Primary Servicer's real estate tax service if engaged in
accordance with Article VII); (4) an insurance monitoring report;
(5) a UCC form monitoring report; and (6) the Day One Report. If the
day that any such report is due is not a Business Day, then such
report shall be due on the next Business Day thereafter. Primary
Servicer shall submit the Payment and Mortgage Loan Status Report
numbered (2) by electronic mail, monthly no later than the Business
Day after the applicable Determination Date day of each month for
the previous month. Primary Servicer shall submit the Payment and
Mortgage Loan Status Report numbered (3), (4) and (5) by electronic
mail, quarterly no later than April 15, July 15, October 15 and
January 15 for the previous quarter. Primary Servicer shall submit
the Payment and Mortgage Loan Status Report numbered (6) by
electronic mail, monthly no later than the first (1st) day of each
month in which the applicable Distribution Date occurs for the then
current Collection Period.
(viii) Master Servicer and Primary Servicer hereby
allocate responsibility for completing the CMSA Investor Reporting
Package for the Mortgage Loans as follows:
(1) Master Servicer shall complete all fields and
aspects of the CMSA Loan Setup File that are available from
the Final Prospectus. Upon completing all of such fields,
Master Servicer shall forward the CMSA Loan Setup File for the
Mortgage Loans to Primary Servicer who shall complete the
fields and aspects of the CMSA Loan Setup File for the
Mortgage Loans that are not available from the Final
Prospectus and return to Master Servicer the completed CMSA
Loan Setup File for the Mortgage Loans within five (5)
Business Days of receiving such file from Master Servicer.
Master Servicer shall deliver a CMSA Loan Setup File to
Primary Servicer (a) for the Mortgage Loans only; (b) in
electronic form; (c) using an Excel file; and (d) with all
fields in the same order as the CMSA Loan Setup File. Primary
Servicer and Master Servicer acknowledge that delivery of the
CMSA Loan Setup File is to commence with the Report Date in
October 2000.
(2) Commencing with the Report Date in October
2000, Master Servicer shall complete the CMSA Loan Periodic
Update File for the Mortgage Loans in accordance with the
Pooling and Servicing Agreement.
(3) Commencing in December 2000, Primary Servicer
shall complete the CMSA Property File monthly for each of the
Mortgage Loans and deliver it to Master Servicer on or before
the Business Day after the applicable Determination Date.
(4) Master Servicer and Primary Servicer
acknowledge and agree that neither will prepare the CMSA
Financial File.
(5) Commencing in November 2000, Primary Servicer
shall complete the Servicer Watch List and the Comparative
Financial Status Report for the Mortgage Loans and deliver
them to Master Servicer on or before the Business Day after
the applicable Determination Date.
(6) Commencing with the Report Date in November
2000, Master Servicer shall complete the Delinquent Loan
Status Report, REO Status Report, Historical Loan Status
Report and Historical Liquidation Report for the Mortgage
Loans in accordance with the Pooling and Servicing Agreement.
(7) Notwithstanding the foregoing, Primary
Servicer shall reasonably cooperate to provide to Master
Servicer specific information or data in Primary Servicer's
possession and necessary to complete a report for which Master
Servicer is responsible, upon the written request of Master
Servicer.
(ix) Master Servicer and Primary Servicer have made
efforts to reconcile the Task Description, the Payment and
Collection Description and Payment and Collection and Reports. In
the event of any conflict between (1) the Task Description and (2)
the Payment and Collection Description and Payment and Mortgage Loan
Status Reports, then the Payment and Collection Description and
Payment and Mortgage Loan Status Reports shall govern.
(x) Notwithstanding any provisions in this Agreement to
the contrary, the Primary Servicer shall be responsible for the
calculation of any and all Prepayment Premiums and Yield Maintenance
Charges payable under each Mortgage Loan.
(xi) Within thirty (30) days of the Closing Date, the
Primary Servicer shall deliver to the Master Servicer a report
listing the tax parcels for each property securing a Mortgage Loan.
(xii) On or before the applicable Primary Servicer
Remittance Date, provided the event described in Section 5.1(d) of
the Pooling and Servicing Agreement occurs, the Primary Servicer
shall remit to the Master Servicer the payment described in such
Section. Additionally, the Primary Servicer shall remit to the
Master Servicer on the related Primary Servicer Remittance Date, the
payment described in Section 5.2(c) of the Pooling and Servicing
Agreement.
(d) Commencing in the year 2001, Primary Servicer shall
inspect, or cause to be inspected, each of the Mortgaged Properties for
the Mortgage Loans in accordance with Section 8.17 of the Pooling and
Servicing Agreement and, promptly upon completion of such inspection,
shall deliver a property inspection report in the form attached as Exhibit
B-3 ("Property Inspection Description") to the Master Servicer and all the
parties entitled to receive inspection reports under Section 8.11 of the
Pooling and Servicing Agreement.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, and the Property Inspection Description.
In the event of any conflict between (1) the Task Description and (2) the
Property Inspection Description, then the Property Inspection Description
shall govern.
(e) Primary Servicer shall promptly notify the Master Servicer
and the Special Servicer of any significant events affecting the Mortgage
Loans, the related Mortgagor or related Mortgaged Property, which become
known to Primary Servicer, such as a payment default, a bankruptcy, a
judicial lien or casualty event, and the Primary Servicer shall also
promptly advise the Master Servicer of all material collection and
customer service issues and, if requested, shall furnish the Master
Servicer with copies of any correspondence or other documents in the
possession of the Primary Servicer related to any such matter.
(f) Primary Servicer shall perform all other obligations of
the Primary Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in
connection with the performance of its obligations hereunder, the Primary
Servicer shall be entitled to request from the Master Servicer, and the
Master Servicer agrees that it shall provide, express instructions for the
completion of any of the Services to be performed or completed by the
Primary Servicer, to the extent necessary to clarify any ambiguities in
the terms of this Agreement. The Master Servicer further agrees that the
Primary Servicer shall be entitled to rely upon any such written
instructions. The Primary Servicer and the Master Servicer, respectively,
shall perform all of their respective obligations as allocated and set
forth in this Agreement, and it is understood that the Primary Servicer
shall have no obligations with respect to the primary servicing of the
Mortgage Loans, except as specifically set forth in this Agreement.
SECTION 2.2 STANDARD OF CARE. The Primary Servicer shall perform
all Services on behalf of the Master Servicer in accordance with the terms of
this Agreement and with the Servicing Standard, and in a manner consistent with
the applicable provisions of the Pooling and Servicing Agreement.
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY
SERVICER. As consideration for the Primary Servicer's performance of the
Services hereunder, the Primary Servicer shall be entitled to deduct the Primary
Servicing Fee in accordance with Section 2.1(c)(iii) of this Agreement, with
respect to the related Collection Period for each Mortgage Loan, and with
respect to each such Mortgage Loan for which a payment was received by the
Master Servicer from the related Mortgagor or received by the Primary Servicer
from the related Mortgagor and forwarded to the Master Servicer by the Primary
Servicer. Notwithstanding the foregoing, Primary Servicer shall not be entitled
to a Primary Servicing Fee with respect to any Mortgage Loan for which a
Servicing Transfer Event has occurred unless such Mortgage Loan becomes a
Rehabilitated Mortgage Loan or with respect to which the Primary Servicer has
been terminated as Primary Servicer under this Agreement and the Pooling and
Servicing Agreement.
Primary Servicer shall have the benefit and shall retain all
interest and income earned on the Primary Servicer Collection Account for the
Mortgage Loans. If Primary Servicer is terminated under this Agreement, it shall
be entitled to collect all such interest and income that accrues through the
date of termination. If a Mortgage Loan becomes a Specially Serviced Mortgage
Loan, Primary Servicer shall be entitled to collect all such interest and income
that accrues through the date of the applicable Servicing Transfer Event. The
right to retain such interest and income shall resume if such Mortgage Loan
becomes a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive the
right to collect a fee or portion of a fee to which it is entitled under this
Agreement but may not waive or otherwise affect the rights of other parties to
any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
Loan Documents.
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES. The
Primary Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (a)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer, (b) the Primary Servicer is duly organized, validly existing
and in good standing as a limited liability company under the laws of the
jurisdiction of its organization. Primary Servicer further represents that since
origination of each Mortgage Loan, Primary Servicer has serviced each of the
Mortgage Loans in accordance with its terms.
ARTICLE III
DOCUMENTS AND OTHER MATTERS
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS. The Primary
Servicer shall segregate the Primary Servicer Servicing Documents related to the
Mortgage Loans from all other assets of the Primary Servicer and, upon request,
forward to the Master Servicer copies of such documents or originals of such
documents if in the possession of Primary Servicer and not part of the Mortgage
File forwarded to the Trustee.
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION.
The Primary Servicer shall make available to the Master Servicer or any
Successor Primary Servicer, at a reasonable time, such information as the Master
Servicer or such Successor Primary Servicer shall reasonably request in writing
and shall make available to the Master Servicer or any Successor Primary
Servicer or Persons designated by the Master Servicer or such Successor Primary
Servicer such documents as the Master Servicer shall reasonably request in
writing. The Master Servicer shall make available to the Primary Servicer, at a
reasonable time, such information as the Primary Servicer shall reasonably
request in writing in connection with the performance of the Services and,
subject to the terms and conditions of Section 8.15 of the Pooling and Servicing
Agreement, shall make available to the Primary Servicer or Persons designated by
the Primary Servicer such documents related to the Mortgage Loans and the
Servicing of the Mortgage Loans as the Primary Servicer shall reasonably request
in writing.
ARTICLE IV
MASTER SERVICER ASSISTANCE
SECTION 4.1 MASTER SERVICER ASSISTANCE.
(a) The Master Servicer shall make reasonable efforts to do
any and all things reasonably requested by the Primary Servicer to enable
the Primary Servicer to render the Services, including, without
limitation, delivering to the Trustee any receipts or other documentation
that the Trustee may require to allow it to release any Mortgage Files or
documents contained therein or acquired in respect thereof requested by
the Primary Servicer. The Primary Servicer shall do any and all things
reasonably requested by the Master Servicer to enable the Master Servicer
to comply with its obligations under the Pooling and Servicing Agreement.
Before the Master Servicer releases all or any portion of any Mortgage
File or document contained therein or acquired in respect thereof to the
Primary Servicer, the Master Servicer may require the Primary Servicer to
execute a receipt therefor or, in the event of a Mortgage Loan that has
been repaid in full, a certificate with respect to the payment in full of
the related Mortgage Loan.
(b) If required in connection with the provision of the
Services, the Master Servicer shall furnish, or cause to be furnished, to
the Primary Servicer, upon request, any powers of attorney of the Master
Servicer or the Trustee, empowering the Primary Servicer to take such
actions as it determines to be reasonably necessary to comply with its
Servicing duties hereunder or to enable the Primary Servicer to service
and administer such Mortgage Loans and carry out its duties hereunder, in
each case in accordance with the Servicing Standard and the terms of this
Agreement. The Primary Servicer hereby agrees to indemnify the Master
Servicer and the Trustee from any loss, damage, expense or claim relating
to misuse or wrongful use of any such power-of-attorney.
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS. The Primary Servicer
shall promptly notify the Master Servicer and (unless the Primary Servicer is an
Affiliate of the Special Servicer) the Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of a Mortgage
Loan that are received by the Primary Servicer and with respect to such Mortgage
Loan such other matters as would, consistent with the Servicing Standard,
require notification to the owner or the servicer of the Mortgage Loan. The
Master Servicer shall promptly notify the Primary Servicer (unless the Primary
Servicer is an Affiliate of the Special Servicer) with respect to any Specially
Serviced Mortgage Loan that becomes a Rehabilitated Mortgage Loan and shall
provide Primary Servicer with all relevant documents received during the time
that the relevant Mortgage Loan was a Specially Serviced Mortgage Loan.
ARTICLE V
ADDITIONAL PRIMARY SERVICER COVENANTS
SECTION 5.1 NOTICE OF LITIGATION. With respect to any Mortgage Loan
as to which litigation is instituted, the Primary Servicer, if aware of such
litigation, shall notify the Master Servicer immediately as to the status of the
litigation related to such Mortgage Loan and shall, when reasonably required or
requested by the Master Servicer, provide to the Master Servicer copies of all
pertinent information in the Primary Servicer's possession related to such
litigation, including, without limitation, copies of related Servicing
Documents.
SECTION 5.2 NO PERSONAL SOLICITATION. The Primary Servicer hereby
agrees that it will not knowingly take any action or cause any action to be
taken by any of its agents or affiliates, or independent contractors or working
on its behalf, to personally, by telephone or mail, solicit the prepayment of
any Mortgage Loan by any Mortgagor. Primary Servicer agrees not to forward to
any Mortgagor or other obligors under a Mortgage Loan, any correspondence or
documents between Master Servicer and Primary Servicer regarding a Post Closing
Request (except the Requirements List (as defined in Exhibit B-2(c)) without the
consent of the Master Servicer or Special Servicer (acting in its sole
discretion), unless required by law.
SECTION 5.3 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Primary Servicer shall deliver to the Master Servicer on or before March 15 of
each year, commencing with March 15, 2001, an Officer's Certificate certifying
that, with respect to the period ending on the preceding December 31, (i) such
Servicing Officer has reviewed the activities of the Primary Servicer during the
preceding calendar year or portion thereof and its performance under this
Agreement has been made under such officer's supervision and (ii) to the best of
such Servicing Officer's knowledge, based on such review, the Primary Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof.
SECTION 5.4 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before April 1 of the year, commencing with April 1, 2001, the Primary Servicer
at its own expense shall cause a firm of independent public accountants (who may
also render other services to the Primary Servicer) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Master Servicer to the effect that such firm has examined certain records and
documents relating to the Primary Servicer's performance of its servicing
obligations under this Agreement in accordance with the requirements of the
Uniform Single Attestation Program for Mortgage Bankers, and in each case
stating such firm's conclusions relating thereto.
SECTION 5.5 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY.
(a) The Primary Servicer, at its own expense, shall maintain
in effect a fidelity bond (the "Primary Servicer Fidelity Bond") and an
errors and omissions policy (the "Primary Servicer Errors and Omissions
Insurance Policy") with a Qualified Insurer, naming the Master Servicer as
loss payee, affording coverage for all directors, officers and employees.
The Primary Servicer Errors and Omissions Insurance Policy and Primary
Servicer Fidelity Bond shall be in such form and amount that would satisfy
the requirements for such policies as the Master Servicer must satisfy as
set forth in Section 8.2 of the Pooling and Servicing Agreement.
Notwithstanding any other provisions of this Agreement, the Primary
Servicer shall be permitted to self-insure with respect to its obligations
to maintain the Primary Servicer Fidelity Bond and a Primary Servicer
Errors and Omissions Policy to the extent the Master Servicer is permitted
under Section 8.2 of the Pooling and Servicing Agreement. The Primary
Servicer shall furnish to the Master Servicer, not later than thirty (30)
days after the Closing Date, evidence of the Primary Servicer's compliance
with this Section 5.5(a).
(b) The Primary Servicer shall promptly report in writing to
the Master Servicer any material adverse changes that may occur in the
Primary Servicer Fidelity Bond or the Primary Servicer Errors and
Omissions Insurance Policy and shall furnish to the Master Servicer upon
written request copies of all binders and policies or certificates
evidencing that such bond and insurance policy are in full force and
effect. The Primary Servicer shall promptly report in writing to the
Master Servicer all cases of embezzlement or fraud or irregularities of
operation relating to the servicing of the Mortgage Loans by the Primary
Servicer and its employees, officers, directors, agents and
representatives if such events involve funds relating to the Mortgage
Loans. The total of such losses, regardless of whether claims are filed
with the applicable insurer or surety, shall be disclosed in such reports
together with the amount of such losses covered by insurance. If a bond or
insurance claim report is filed with any of the Primary Servicer's bonding
companies or insurers relating to the Mortgage Loans or the servicing
thereof, a copy of such report (which report may omit any references to
individuals suspected of such embezzlement, fraud or irregularities of
operation) shall be promptly furnished to the Master Servicer.
SECTION 5.6 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED
INFORMATION. The Primary Servicer shall deliver to the Master Servicer, within
120 days after the end of each fiscal year of the Primary Servicer, a copy of
its annual financial statements, such financial statements to be audited if then
customarily audited, and with respect to any unaudited financial statements
provided by the Primary Servicer, which financial statements shall be certified
by the Primary Servicer's chief financial officer to be true, correct and
complete. The Primary Servicer shall notify the Master Servicer, as of the
Closing Date, of the Primary Servicer's fiscal year and shall notify the Master
Servicer promptly after any change thereof.
SECTION 5.7 NO ADVANCING.
(a) The Primary Servicer shall neither make, nor have an
obligation to make, any Advances with respect to any Mortgage Loan, except
for advances required to be made by the Primary Servicer pursuant to
Section 5.7(b).
(b) Not later than each Primary Servicer Remittance Date, the
Primary Servicer shall advance from its own funds the full amount of each
Scheduled Payment (net of an amount equal to the Primary Servicer Fee that
would be payable from the Scheduled Payment upon its receipt) for each
Post Determination Date Mortgage Loan to the extent such Scheduled Payment
is due (without regard to grace periods) in the month in which such
Primary Service Remittance Date occurs is not received by the Primary
Servicer Remittance Date; provided, however, that the Primary Servicer
shall not be required to make such Primary Servicer P&I Advance as to any
Post Determination Date Mortgage Loan the Mortgagor under which has
theretofore notified the Primary Servicer in writing (and the Primary
Servicer has delivered a copy thereof to the Master Servicer by facsimile
transmission) to the effect that such Mortgagor will not make the
Scheduled Payment for which such Primary Servicer P&I Advance would
otherwise be required. Each such Primary Servicer P&I Advance shall be
made by deposit to the Primary Servicer's Collection Account established
under Section 2.1(c)(i). As to each such Post Determination Date Mortgage
Loan for which the Primary Servicer has made such a Primary Servicer P&I
Advance: (i) if and to the extent that the related Mortgagor makes the
related Scheduled Payment on or before the expiration of the Due Date and
grace period, the Primary Servicer shall, upon such payment, reimburse
itself in the amount so paid by withdrawal from the Primary Servicer's
Collection Account as provided in Section 2.1(c)(iv) of this Primary
Servicing Agreement and shall simultaneously notify the Master Servicer of
such reimbursement and (ii) the Master Servicer shall, not later than one
Business Day after the expiration of the Due Date plus grace period,
reimburse the Primary Servicer in the full amount of the Primary Servicer
P&I Advance made by the Primary Servicer in respect of such Mortgage Loan
in that month pursuant to the first sentence of this subsection (b),
except to the extent that the Primary Servicer has reimbursed itself
therefor and notified the Master Servicer pursuant to the preceding clause
(i). Notwithstanding any provision of the foregoing to the contrary, with
respect to each of the Mortgage Loans identified on the Mortgage Loan
Schedule by loan numbers 4, 19, 25, 37, 43, 60, 64 and 68 as to which the
related terms provide for a grace period in connection with the Balloon
Payment and such grace period does not expire by the end of the Collection
Period in the month in which the Balloon Payment is due, the term
"Scheduled Payment" above shall be construed, with respect to the Balloon
Payment, to mean an amount equal to the "Assumed Scheduled Payment"
(determined as if the Balloon Payment were past due). In addition, with
respect to the Mortgage Loan identified on the Mortgage Loan Schedule by
loan number 37, as to which the grace period applicable to the Balloon
Payment does not expire before the Primary Servicer Remittance Date
occurring in the month in which the Balloon Payment is due, the Primary
Servicer shall from its own funds, without reimbursement therefor, remit
to the Master Servicer, on the Primary Servicer Remittance Date occurring
in the month next succeeding the month in which the Balloon Payment is
due, an amount equal to the lesser of (i) the aggregate of all Primary
Servicing Fees otherwise payable in respect of such month and (ii) the
amount analogous to the Prepayment Interest Shortfall that would arise
with respect to such Mortgage Loan, whether or not such Balloon Payment is
then received. Remittances of Principal Prepayments shall include any
interest paid by the Borrower with such Principal Prepayment. No interest
shall accrue on or be payable to the Primary Servicer (whether by
withdrawal from the Primary Servicer's Collection Account, payment by the
Master Servicer, withdrawal from the Master Servicer's Certificate Account
or otherwise) in respect of any Primary Servicer P&I Advance made by the
Primary Servicer to the Master Servicer under this subsection (b).
SECTION 5.8 REMIC COMPLIANCE. The Primary Servicer shall take no
action that would result in a violation of (with notice or the passage of time)
the Master Servicer's obligations with respect to REMIC compliance as provided
in the Pooling and Servicing Agreement.
SECTION 5.9 INSPECTION RIGHTS. The Primary Servicer shall afford
the Master Servicer and the Trustee, upon reasonable notice and during normal
business hours, reasonable access to all records, information, books and
documentation regarding the applicable Mortgage Loans, and all accounts,
insurance policies and other relevant matters relating to this Agreement, and
access to Servicing Officers of the Primary Servicer responsible for its
obligations hereunder. Without limiting the foregoing, the Master Servicer may
visit the offices of the Primary Servicer no more than once annually (including
visits under similar primary servicing agreements between the Master Servicer
and the Primary Servicer) for the purpose of reviewing the Primary Servicer's
compliance with this Agreement and such similar agreements, upon reasonable
notice and during normal business hours, and Primary Servicer will cooperate
with Master Servicer to provide Master Servicer with the information that Master
Servicer reasonably requests to permit such review. Primary Servicer shall
reimburse Master Servicer for its reasonable and actual travel expenses incurred
in connection with such review in an amount not to exceed $5,000 (the "Maximum
Annual Cap"). The Maximum Annual Cap shall apply to amounts payable hereunder
and under any other similar primary servicing agreement between the Master
Servicer and the Primary Servicer.
SECTION 5.10 AUTHORIZED OFFICER. Primary Servicer shall provide
Master Servicer promptly with a written list of authorized Servicing Officers of
Primary Servicer, which may be amended from time to time by written notice from
Primary Servicer to Master Servicer; provided, however, that such list shall
denote one principal Servicing Officer responsible for the Primary Servicer's
obligations under this Agreement.
SECTION 5.11 [Reserved].
SECTION 5.12 ADDITIONAL REPORTS. Primary Servicer shall produce such
additional written reports with respect to the Mortgage Loans as the Master
Servicer may from time to time reasonably request in accordance with the
Servicing Standard and shall reasonably cooperate with Master Servicer to aid
Master Servicer in its obligations to produce additional reports and respond to
inquiries under the Pooling and Servicing Agreement.
SECTION 5.13 PREPAYMENTS. To the extent permitted under the related
Loan Documents, for any Mortgage Loan, Primary Servicer shall require Principal
Prepayments to be made so as not to cause a Prepayment Interest Shortfall. If
the Loan Documents of a related Mortgage Loan do not allow Primary Servicer to
require Principal Prepayments on a date that will avoid a Prepayment Interest
Shortfall ("Non-Mandatory Prepayment Date Mortgage Loan"), then Primary Servicer
shall remit to Master Servicer within one Business Day of receipt the amount of
the prepayment in addition to all other amounts due for such Principal
Prepayment. Notwithstanding any provision of this Agreement to the contrary,
with respect to Mortgage Loan numbers 4, 19, 35, 43, 60, 64 and 68, the Primary
Servicer shall use its reasonable best efforts to remit to the Master Servicer
on the date of receipt, but in any event within one Business Day following
receipt any Principal Prepayment or Balloon Payment received in respect of any
Mortgage Loan, together with the accrued interest thereon. With respect to Loan
number 4, 19, 35, 43, 60, 64 and 68, each of which provides for a grace period
in connection with a Balloon Payment and such grace period expires after the end
of the related Collection Period, the Primary Servicer in any event (i) shall
provide to the Master Servicer with immediate notice of the Primary Servicer
becoming aware of any expected Principal Prepayment, (ii) shall provide the
Master Servicer with immediate notice of receipt of such Principal Prepayment or
Balloon Payment and (iii) shall use its reasonable best efforts to remit such
Principal Prepayment or Balloon Payment to the Master Servicer on the date of
receipt, but in any event, within one Business Day of receipt. Remittances
pursuant to this Section shall include any interest payments by Borrowers
accompanying the Principal Prepayments or Balloon Payments.
SECTION 5.14 CONSENTS. Primary Servicer shall (a) obtain the consent
of the Special Servicer with respect to assignments and assumptions of Mortgage
Loans in accordance and subject to the terms of Section A.1.(c)(ii) of Exhibit
B-2(c) of this Agreement; (b) obtain the consent of the Special Servicer with
respect to additional liens, monetary encumbrances and mezzanine financings in
accordance and subject to the terms of Section A.1.(c)(iii) of Exhibit B-2(c) of
this Agreement; (c) obtain the consent of the Special Servicer with respect to
any Category 2 Request in accordance with and subject to the terms of Section
A.2 of Exhibit B-2(a); and (d) notify Master Servicer of any Category 1 Consent
Aspect in any Category 1 Request, which shall then be subject to Master
Servicer's Materiality Determination and thereafter handled in accordance with
Sections A.1.(a) and (c)(iv) of Exhibit B-2(c) of this Agreement. If the Pooling
and Servicing Agreement requires the Master Servicer to deliver originals or
copies of any documents executed in connection with a Category 1 Request or
Category 2 Request, the Primary Servicer shall promptly upon the closing of the
transaction deliver such document or copy to the Master Servicer and each Person
to whom the Master Servicer is required to deliver such document or copy under
the Pooling and Servicing Agreement.
ARTICLE VI
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
SECTION 6.1. PRIMARY SERVICER DEFAULT. Each of the following events
shall constitute a "Primary Servicer Default" hereunder:
(i) any failure by the Primary Servicer to remit to the
Master Servicer when due any amount required to be remitted under
this Agreement or any failure of Primary Servicer to make any
Primary Servicer P&I Advance required to be made by Section 5.7; or
(ii) any failure by the Primary Servicer duly to observe
or perform in any material respect any of the covenants or
agreements on the part of the Primary Servicer contained in this
Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Primary Servicer by the Master Servicer; provided, however, that
to the extent the Master Servicer determines, in its reasonable
discretion, that the Primary Servicer is in good faith attempting to
remedy such failure and the Certificateholders shall not be
materially and adversely affected thereby, such cure period may be
extended to the extent necessary to permit the Primary Servicer to
cure such failure; provided, further, that such cure period may not
exceed sixty (60) days; and provided, further that if such failure
to perform on the part of the Primary Servicer results in an Event
of Default by the Master Servicer under the Pooling and Servicing
Agreement, then the cure periods described in this Section 6.1(ii)
shall not apply; or
(iii) any breach of the representations and warranties
made pursuant to Section 2.4 hereof that materially and adversely
affects the interest of the Master Servicer and that continues
unremedied for a period of twenty-five (25) days after the date on
which written notice of such breach, requiring the same to be
remedied, shall have been given by the Master Servicer to Primary
Servicer; provided, however, that to the extent the Master Servicer
determines in its reasonable discretion that the Primary Servicer is
in good faith attempting to remedy such breach and the
Certificateholders shall not be materially and adversely affected
thereby, such cure period may be extended to the extent necessary to
permit the Primary Servicer to cure such breach; provided, however,
that such cure period may not exceed sixty (60) days; and provided,
further, that if such failure to perform on the part of the Primary
Servicer results in an Event of Default (or an event that with
notice or the passage of time would constitute such an Event of
Default) by the Master Servicer under the Pooling and Servicing
Agreement, then the cure periods described in this Section 6.1(iii)
shall not apply; or
(iv) any Rating Agency shall qualify, lower or withdraw
the outstanding rating of any Class of Certificates because the
prospective financial condition or mortgage loan servicing capacity
of the Primary Servicer is insufficient to maintain such rating; or
(v) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in
any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, shall have been entered against the
Primary Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(vi) the Primary Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings
or of or relating to all or substantially all of its property; or
(vii) the Primary Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency
or reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take
any corporate action in furtherance of the foregoing; or
(viii) any other event caused by the Primary Servicer
which creates an Event of Default (or an event that with notice or
the passage time would constitute or result in such an Event of
Default) of the Master Servicer under the Pooling and Servicing
Agreement.
Primary Servicer agrees to give prompt written notice to
Master Servicer upon the occurrence of any Primary Servicer Default.
SECTION 6.2. TERMINATION.
(a) The obligations and responsibilities of the Primary
Servicer as created hereby (other than as expressly provided herein) shall
terminate upon the earliest to occur of (i) the receipt by the Primary
Servicer of the Master Servicer's written notice of such termination
delivered at the Master Servicer's option following the occurrence of a
Primary Servicer Default, and (ii) the final payment or other liquidation
of the last Mortgage Loan remaining outstanding (the "Primary Servicing
Termination Date"). From and after the Primary Servicing Termination Date,
the Primary Servicer shall, if applicable, continue to cooperate in the
transfer of primary servicing, including the delivery of files and
transfer of accounts as contemplated hereby but shall have no further
obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Master Servicer under this Agreement and the
Pooling and Servicing Agreement may be assumed by a successor Master
Servicer or the Trustee upon a termination of the Master Servicer's
servicing rights pursuant to the Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling
and Servicing Agreement (except a termination of Master Servicer caused by
a Primary Servicer Default). In the event of such a termination, any
successor Master Servicer or the Trustee (if it assumes the servicing
obligations of the Master Servicer) shall be deemed to automatically have
assumed and agreed to this Agreement without further action upon becoming
the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm
to Primary Servicer in writing that this Agreement remains in full force
and effect. Upon the request of Primary Servicer, the successor Master
Servicer or Trustee, as applicable, shall confirm to Primary Servicer in
writing that this Agreement remains in full force and effect. Upon the
request of the successor Master Servicer or Trustee, Primary Servicer
shall confirm to the successor Master Servicer or Trustee, as applicable,
in writing that this Agreement remains in full force and effect.
(b) The Master Servicer's reimbursement obligations to the
Primary Servicer hereunder shall survive the Primary Servicing Termination
Date, but only to the extent such reimbursement relates to a period prior
to the termination of all of the Primary Servicer's obligations hereunder.
(c) The rights of Master Servicer to terminate Primary
Servicer upon the occurrence of a Primary Servicer Default shall be in
addition to any other rights Master Servicer may have at law or in equity,
including injunctive relief or specific performance.
SECTION 6.3.POST-TERMINATION OBLIGATIONS.
(a) In the event of a termination of primary servicing due to
Primary Servicer Default, the Primary Servicer shall promptly deliver the
Servicing Documents as directed by the Master Servicer and remit to the
Master Servicer, by wire transfer of immediately available funds, all cash
held by the Primary Servicer with respect to the related Mortgage Loans,
and shall, if so requested by the Master Servicer, assign to the Master
Servicer or a Successor Primary Servicer, as directed by the Master
Servicer, and in such event the Master Servicer shall assume, or cause the
Successor Primary Servicer to assume, all service contracts related to the
Mortgage Loans transferred thereon but only to the extent such contracts
are assignable and the required consents (if any) to such assignments have
been obtained. The Primary Servicer shall use all reasonable efforts to
obtain the consents required to effect such assignments.
(b) On and after the Primary Servicing Termination Date, the
Primary Servicer shall promptly endorse and send to the Master Servicer
via overnight mail or delivery service any checks or other funds in
respect of any Mortgage Loan which are received by the Primary Servicer.
(c) The Primary Servicer shall provide to the Master Servicer
promptly (but in no event later than ten (10) Business Days) after the
Primary Servicing Termination Date the following information, in each case
as of such date: (a) a ledger accounting itemizing the dates and amounts
of all payments made, received or applied by the Primary Servicer with
regard to each Mortgage Loan, further itemizing principal and interest
payments, tax payments, special assessments, hazard insurance, mortgage
insurance premiums, ground rents, if any, and all other payments and (b) a
current trial balance for each such Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and
the Master Servicer, but not later than the Business Day following the
Primary Servicing Termination Date, the Primary Servicer shall commence
and continue diligently to completion at its own expense, to notify
Mortgagors under the related Mortgage Loans of the address to which
payments on such Mortgage Loans should be sent after the Primary Servicing
Termination Date; provided, however, that in any event, Primary Servicer
shall be obligated to notify Mortgagors within seven (7) Business Days of
the Primary Servicing Termination Date.
(e) The Primary Servicer shall promptly forward to the Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan which is received by the Primary Servicer
after the Primary Servicing Termination Date.
(f) The Primary Servicer shall otherwise cooperate in the
orderly transfer of the servicing of the Mortgage Loans and shall forward
to the Master Servicer and any successor primary servicer such documents
as it may receive from time to time regarding any Mortgage Loan
transferred and provide such other assistance as may reasonably be
required by the Master Servicer or any successor primary servicer
regarding such transfer.
(g) Primary Servicer shall be entitled to all fees,
compensation, interest and earnings on the Mortgage Loans accrued through
the date of termination of its obligations and rights under this
Agreement.
SECTION 6.4 ADDITIONAL TERMINATION.
Notwithstanding any provision herein to the contrary, this Agreement
shall terminate with respect to any individual Mortgage Loan (i) if and when
such Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO Mortgage
Loan or (ii) if and when such Mortgage Loan is sold or otherwise disposed of by
or on behalf of the Trust. In the event of such termination, the Primary
Servicer shall comply with Section 6.3 as if a Primary Servicer Default had
occurred, except that such Section shall be construed to relate only to such
Mortgage Loan and references therein to Primary Servicing Termination Date shall
be construed to mean the date of such termination, and (ii) the Primary Servicer
shall cooperate in the orderly transfer of the servicing of such Mortgage Loan
and shall forward to the Master Servicer and if the Master Servicer requests,
the Special Servicer, such documents as the Primary Servicer may receive from
time to time with respect thereto and provide such other assistance as may
reasonably be required by the Master Servicer with respect thereto. Primary
Servicer shall be entitled to all fees, compensation, interest and earnings on
such Mortgage Loan accrued through the date of termination of its obligations
and rights with respect to such Mortgage Loan under this Agreement. If such
Mortgage Loan subsequently becomes a Rehabilitated Mortgage Loan, then, the
Primary Servicer shall promptly resume the servicing of such Mortgage Loan in
accordance with the terms hereof.
ARTICLE VII
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in
the case of material subcontracts and without prior notice to or the prior
written consent of the Master Servicer in the case of non-material subcontracts,
the Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans; provided,
however, that (a) the Primary Servicer shall remain fully liable at all times
for the performance of all Services and for all other obligations hereunder; and
(b) in no event shall any such subcontractors make any of the decisions, be
given discretion to make any decisions, or have any authority to make any
decisions, required as part of a Category 1 Request, Category 2 Request or any
decision or recommendation involving the exercise of the Primary Servicer's
discretion as a "lender" under any of the Loan Documents for the Mortgage Loans.
ARTICLE VIII
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans held by the Primary
Servicer, including but not limited to the Primary Servicer Servicing Documents,
mortgage servicing documents, books, computer tapes and other documents and
records (except for microfilm records) as well as any reproductions or copies of
such records furnished for the purposes of performing Services from the Cut-off
Date are, and shall continue at all times to be, held by the Primary Servicer
for the benefit of the Master Servicer and shall not be released, disseminated
or otherwise made available to third parties without the prior written consent
of the Master Servicer.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY.
(a) The Primary Servicer shall indemnify the Master Servicer,
its officers, employees and agents against, and hold the Master Servicer
harmless from, any and all losses, liabilities, expenses, claims, demands,
costs, or judgment of any type against the Master Servicer arising out of
or related to (i) a negligent or willful failure of the Primary Servicer
or any Person hired by the Primary Servicer to perform properly any of the
Services to be performed by the Primary Servicer pursuant to the Payment
and Collection Description, the Payment and Mortgage Loan Status Reports,
Post Closing Matters Description and Task Description, (ii) any failure by
the Primary Servicer to perform its obligations under this Agreement, or
(iii) breach of any of the Primary Servicer's representations and
warranties hereunder; provided, however, that the Primary Servicer shall
not be required to indemnify the Master Servicer, its officers, employees
or agents against or hold the Master Servicer, its officers, employees or
agents harmless from any losses to the extent that such loss is caused by
the actions of the Master Servicer, its officers, employees or agents in
violation of the Master Servicer's duties under this Agreement or under
the Pooling and Servicing Agreement (except to the extent that such
failure was caused by the Primary Servicer's failure to perform its
obligations hereunder). The indemnification provided under this Section
9.1 shall survive the Primary Servicing Termination Date. The Master
Servicer shall promptly notify the Primary Servicer if a claim is made by
a third party with respect to this Agreement or the Mortgage Loans
entitling the Master Servicer to indemnification hereunder. The Primary
Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge
and satisfy any judgment or decree which may be entered against it or them
in respect of such claim. Any failure to so notify the Primary Servicer
shall not affect any of the Master Servicer's rights to indemnification.
(b) Neither the Primary Servicer nor any of the directors,
officers, employees or agents of the Primary Servicer shall be under any
liability to the Master Servicer, the holders of the Certificates, the
Depositor, the Trustee or any other Person for any action taken or for
refraining from the taking of any action in good faith and using its
reasonable business judgment pursuant to this Agreement, or for errors in
judgment; provided that this provision shall not protect the Primary
Servicer or any such person against any breach of a covenant,
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Primary Servicer
and any director, officer, employee or agent of the Primary Servicer may
rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
SECTION 9.2 MASTER SERVICER'S INDEMNITY. Master Servicer shall use
all reasonable efforts to obtain the benefits of the rights of indemnification
in favor of Master Servicer contained in the Pooling and Servicing Agreement on
behalf of the Primary Servicer and the Primary Servicer's agents, employees and
subcontractors and shall cause the indemnifying party to hold the Primary
Servicer and the Primary Servicer's agents, employees and subcontractors
harmless from any and all losses, liabilities, expenses, claims, demands, costs
or judgments of any type against the Primary Servicer arising out of or related
to the Primary Servicer's performance hereunder. The Primary Servicer's rights
provided under this Section 9.2 shall survive the Primary Servicing Termination
Date.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 SEVERABILITY. Each part of this Agreement is intended
to be severable. If any term, covenant, condition or provision hereof is
unlawful, invalid, or unenforceable for any reasons whatsoever, and such
illegality, invalidity, or unenforceability does not affect remaining part of
this Agreement, then all such remaining parts hereof shall be valid and
enforceable and have full force and effect as if the invalid or unenforceable
part had not been included.
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS. The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or amended other than by an express waiver or
amendment in writing. Any failure to exercise (or any delay in exercising) any
of such rights shall not operate as a waiver or amendment of that or any other
such right. Any defective or partial exercise of any of such right shall not
preclude any other or further exercise of that or any other such right No act or
course of conduct or negotiation on the part of any party shall in any way estop
or preclude such party from exercising any such right or constitute a suspension
or any waiver of any such right.
SECTION 10.3 HEADINGS. The headings of the Sections and Articles
contained in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision hereof.
SECTION 10.4 CONSTRUCTION. Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender. This Agreement is the result
of arm's-length negotiations between the parties and has been reviewed by each
hereto and its counsel. Each party agrees that any ambiguity in this Agreement
shall not be interpreted against the party drafting the particular clause which
is in question.
SECTION 10.5 ASSIGNMENT. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective heirs, executors, administrators, representatives,
successors, and assigns. This Agreement and the rights and benefits hereunder of
the Primary Servicer shall not be assignable, and the duties and obligations
hereunder of such party shall not be delegable, except that in the following
instances, Primary Servicer may assign, sell or transfer its rights under this
Agreement without the consent of (but upon written notice to) the Master
Servicer:
(a) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement to a parent company of Primary
Servicer or a wholly-owned subsidiary or affiliate of such party, or a
successor by merger or as the result of a demutualization of a parent
company of Primary Servicer, as long as such successor has net assets and
net worth equal to or greater than the net assets and net worth of the
Primary Servicer.
(b) Intentionally deleted.
(c) With the prior written consent of Master Servicer which
consent shall not be unreasonably withheld or delayed, Primary Servicer
may assign, sell or transfer its rights and obligations under this
Agreement to any master or primary servicer, if (1) such entity is either
(a) rated by the Rating Agencies as satisfactory or its equivalent in such
capacity or (b) approved by the Special Servicer and Operating Advisor (in
addition to Master Servicer as provided above), which approval shall not
be unreasonably withheld or delayed and (2) Primary Servicer at its sole
cost receives Rating Agency Confirmation from the Rating Agencies prior to
such assignment, sale or transfer.
(d) Primary Servicer may assign or subcontract certain of its
rights and obligations under this Agreement as expressly provided in and
subject to the terms of this Agreement.
Any such assignment under this Section 10.5 shall (i) not be
effective until such successor Primary Servicer enters into a written agreement
reasonably satisfactory to Master Servicer agreeing to be bound by the terms and
provisions of this Agreement (but not altering the obligations under this
Agreement); and (ii) not relieve the assigning Primary Servicer of any duties or
liabilities arising or incurred prior to such assignment. Any costs or expenses
incurred in connection with such assignment shall be payable by the assigning
Primary Servicer. Any assignment of delegation or attempted assignment or
delegation in contravention of this Agreement shall be null and void. The
proceeds of any assignment, sale or transfer permitted under this Section 10.5
or to which consent was granted shall belong solely to the assignor of such
rights, and Master Servicer shall have no claim to them.
SECTION 10.6 RESIGNATION OF PRIMARY SERVICER.
(a) Except as otherwise provided in Section 10.6(b) hereof,
the Primary Servicer shall not resign from the obligations and duties
hereby imposed on it unless it determines that the Primary Servicer's
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities
carried on by it. Any such determination permitting the resignation of the
Primary Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Master Servicer. No such resignation shall become
effective until a successor servicer designated by the Master Servicer
shall have assumed the Primary Servicer's responsibilities and obligations
under this Agreement, and Special Servicer and Operating Advisor shall
have consented to such successor servicer which consent shall not be
unreasonably withheld or delayed; provided that the designation and
assumption by Master Servicer of Primary Servicer's responsibilities and
obligations under this Agreement pursuant to this Section 10.6(a) shall
not require the consent of Special Servicer or Operating Advisor.
(b) The Primary Servicer may resign from the obligations and
duties imposed on it, upon 60 days' notice to the Master Servicer,
provided that (i) the Primary Servicer bears all costs associated with its
resignation and the transfer of servicing; (ii) Primary Servicer
designates a successor servicer to assume Primary Servicer's
responsibilities and obligations under this Agreement; (iii) Master
Servicer, Special Servicer and Operating Advisor shall consent to such
successor servicer which consent shall not be unreasonably withheld or
delayed; and (iv) such successor servicer assumes Primary Servicer's
responsibilities and obligations under this Agreement; provided, however,
that the designation and assumption by Master Servicer of Primary
Servicer's responsibilities and obligations under this Agreement pursuant
to this Section 10.6(b) shall not require the consent of Special Servicer
or Operating Advisor.
(c) In connection with any resignation under subsections (a)
or (b) above, the Primary Servicer shall comply with Section 6.3 as if a
Primary Servicer Default occurred, except that reference in such Section
to Primary Servicing Termination Date shall be construed to mean the date
of resignation under subsections (a) or (b) above, as the case may be.
SECTION 10.7 PRIOR UNDERSTANDINGS. This Agreement supersedes any and
all prior discussions and agreements between or among the Seller, the Primary
Servicer and the Master Servicer with respect to the Servicing of the Mortgage
Loans and the other matters contained herein. This Agreement, together with the
Pooling and Servicing Agreement, contain the sole and entire understanding
between the parties hereto with respect to the transactions contemplated herein.
Every effort shall be made to construe this Agreement and the Pooling and
Servicing Agreement consistently. If a conflict exists between such agreements,
then the Pooling and Servicing Agreement shall control. If this Agreement
requires Primary Servicer to perform a task or duty, the details and obligations
of which are (a) set forth in this Agreement and (b)(i) are not set forth in the
Pooling and Servicing Agreement or (ii) are set forth in the Pooling and
Servicing Agreement only in general terms, then Primary Servicer shall perform
such task and duties in accordance with the details and obligations set forth in
this Agreement. If this Agreement requires Primary Servicer to perform a task or
duty, the details and obligations of which are not set forth in this Agreement
but are contained in the Pooling and Servicing Agreement, then the Primary
Servicer shall perform such task and duties in accordance with the Pooling and
Servicing Agreement.
SECTION 10.8 INTEGRATED AGREEMENT. This Agreement constitutes the
final complete expression of the intent and understanding of the Primary
Servicer and the Master Servicer and may not be altered or modified except by a
subsequent writing, signed by the Primary Servicer and the Master Servicer.
SECTION 10.9 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall constitute one and the same
instrument. Any party hereto may execute this Agreement by signing any such
counterpart.
SECTION 10.10 GOVERNING LAWS. This Agreement shall be governed by
and 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 without regard to conflicts of law principles.
SECTION 10.11 NOTICES. Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), if delivered personally, by facsimile
or, as to the notices delivered to the Master Servicer under Section 2.1(c)(iv)
and 5.7(b), by electronic mail to the party described in such sections or (b) on
the second following Business Day, if sent by overnight mail or overnight
courier, in each case to the parties at the following addresses (or at such
other addresses as shall be specified by like notice);
If to the Master Servicer: As set forth in Section 13.5 of the
Pooling and Servicing Agreement
If to the Primary Servicer: Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-1450
Attention: Diane McGuire
Telephone No.: (515) 246-7360
Facsimile No.: (515) 248-8090
SECTION 10.12 AMENDMENT. In the event that the Pooling and Servicing
Agreement is amended, this Agreement shall be deemed to have been amended and to
the extent necessary to reflect such amendment to the Pooling and Servicing
Agreement, but no such amendment to the Pooling and Servicing Agreement or
deemed amendment to this Agreement shall increase the obligations or decrease
the rights of Primary Servicer under this Agreement without its express written
consent which consent shall not be unreasonably withheld or delayed.
SECTION 10.13 OTHER. This Agreement shall not be construed to grant
to any party hereto any claim, right or interest in, to or against the trust
fund created pursuant to the Pooling and Servicing Agreement or any assets of
such trust fund.
[END OF PAGE]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto by an authorized representative, all as of the day and
year first above written.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement
By:
--------------------------------------
Name:
Title:
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting
solely in its capacity as Primary Servicer
under this Primary Servicing Agreement
By:
--------------------------------------
Name: Patrick G. Halter
Title: Senior Managing Director
By:
--------------------------------------
Name: Karen A. Pearston
Title: Counsel
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting
solely in its capacity as Special Servicer
under the Pooling and Servicing Agreement
By:
--------------------------------------
Name: Patrick G. Halter
Title: Senior Managing Director
By:
--------------------------------------
Name: Karen A. Pearston
Title: Counsel
<PAGE>
EXHIBIT A
POOLING AND SERVICING AGREEMENT
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
<PAGE>
EXHIBIT B
Exhibit B-1: Payment and Mortgage Loan Status Reports
Exhibit B-2: Post Closing Matters Description
Exhibit B-3: Property Inspection Reports
Exhibit B-4: Task Description
Exhibit B-5: CMSA Investor Reporting Package
<PAGE>
EXHIBIT B-1
PAYMENT AND MORTGAGE LOAN STATUS REPORTS
Section 2.1(c)(vii) of the Agreement sets forth the types and timing of the
reports to be delivered by Primary Servicer to Master Servicer on the Mortgage
Loans as specified in this Agreement. Attached as this Exhibit B-1 are the forms
of the reports described in such section.
Exhibit B-1(a): Remittance report for payments received on Mortgage Loans
during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real Tax Delinquency Report
Exhibit B-1(d): Insurance Monitoring Report
Exhibit B-1(e): UCC Monitoring Report
Exhibit B-1(f): Day One Report
<PAGE>
EXHIBIT B-2
POST CLOSING MATTERS DESCRIPTION
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on
Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon
Classification
<PAGE>
EXHIBIT B-2(A)
POST CLOSING MATTERS DESCRIPTION
When Primary Servicer receives a request from a Mortgagor for action
("Post Closing Request") on its related Mortgage Loan, Primary Servicer shall
classify each Post Closing Request into one of the following three (3)
categories:
o Post Closing Requests over which Primary Servicer shall have
decision making authority to analyze, consent to, approve and
process such requests, subject to consent rights in certain
circumstances set forth in Exhibit B-2(c) below ("Category 1
Requests");
o Post Closing Requests in which Primary Servicer shall act as a
gatherer of information, analyze, recommend, approve and process
such requests but shall leave the consent to Special Servicer
("Category 2 Requests"); and
o Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be classified
into one of the three (3) categories specified above and the materials that
follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance with
the Servicing Standard, the terms of this Agreement and the Pooling and
Servicing Agreement and the REMIC Provisions, while providing responsive service
to Mortgagors.
The attached chart does not address Payment and Collection Description,
Payment and Collection Reporting or Property Inspection Description, which is
covered elsewhere in this Agreement.
<PAGE>
EXHIBIT B-2(B)
CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
<TABLE>
<CAPTION>
==============================================================================================================
CATEGORY WHEN APPLICABLE EXAMPLES ALLOCATION OF FEES
==============================================================================================================
<S> <C> <C> <C>
1 Category 1 Post Closing Transfer rights Primary Servicer
Requests Request is contemplated in Loan collects entire
specifically Documents (including administrative or
authorized in the without limitation processing fee, legal
loan documents for assignment and fees and out-of-pocket
the related assumption rights); expenses and 100% of
Mortgage Loan, partial releases any additional fees or
either outright or contemplated in Loan portions of fees
upon the Documents; easements (including without
satisfaction of contemplated in Loan limitation transfer
certain specified Documents; evaluation of fees) payable to Master
conditions alterations under Servicer under Pooling
(including the specified threshold; and Servicing Agreement
exercise of any administer, monitor and (i.e. transfer fee).
specified standard release of reserve or Special Servicer would
of consent or escrow amounts in receive any portion of
judgment within accordance with reserve fees due it under the
such conditions or escrow agreements; Pooling and Servicing
subject to the approval of leases below Agreement.
terms of this threshold specified in
Agreement) Loan Documents;
additional lien, monetary
encumbrance or mezzanine
financing placed on
Mortgaged Property that is
specifically contemplated
in Loan Documents under
specified conditions.
---------------------------- --------------------- ----------------------------- ----------------------------
2 Category 2 Post Closing Approval of leases above Primary Servicer
Requests Request (other than threshold specified in entitled to 100% of
Category 3 Request) Loan Documents; consent administrative or
is not specifically to easement not processing fee or
authorized or is contemplated in Loan portion of fees payable
prohibited or not Documents; consent to to Master Servicer
addressed in the easements not under the Pooling and
Loan Documents contemplated by Loan Servicing Agreement.
Documents; consent to Additional fees are
condemnations; consent payable to Special
to partial release; Servicer as specified
consent to construction in Pooling and
of additional Servicing Agreement.
improvements.
---------------------------- --------------------- ----------------------------- ----------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
=====================================================================================================
CATEGORY WHEN APPLICABLE EXAMPLES ALLOCATION OF FEES
=====================================================================================================
<S> <C> <C> <C>
3 Category 3 Post Closing Requests to Changes to maturity Primary Servicer not
Requests Money Terms, Defaulted date, interest rate, entitled to fee.
Mortgage Loans or principal balance, Special Servicer is
Mortgage Loans upon amortization term, entitled to fees as
which a Servicing payment amount or provided in the Pooling
Transfer Event has frequency; or and Servicing Agreement.
occurred. any actions to loan in
default.
=====================================================================================================
</TABLE>
<PAGE>
EXHIBIT B-2(C)
PROCESS FOR HANDLING POST CLOSING REQUESTS UPON CLASSIFICATION
A. PROCESS FOR DISPOSITION OF POST CLOSING REQUESTS ONCE CLASSIFICATION IS MADE.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
1. CATEGORY 1 REQUESTS:
a) If Primary Servicer classifies a Post Closing Request as a Category 1
Request, it shall promptly (but in no event more than five (5) Business Days
after receiving such request) notify Master Servicer of (a) such request; (b)
Primary Servicer's classification of the Post Closing Request as a Category 1
Request; and (c) any Category 1 Consent Aspect involved in such request.
Notwithstanding the foregoing, as a result of the monthly reconciliation of
reserve accounts that Primary Servicer provides to Master Servicer under this
Agreement, Primary Servicer shall have no obligation (a) to notify Master
Servicer of any disbursement made from an escrow or reserve account pursuant to
the terms of such agreement governing such reserve or escrow or (b) to seek
consent of Master Servicer to extend (1) the time available to a Mortgagor to
complete repairs, replacements or improvements pursuant to an escrow or reserve
agreement or (2) the expiration date of any letters of credit associated with
such escrow or reserve, as long as (i) Primary Servicer promptly notifies Master
Servicer in writing of such extension; and (ii) any such extension is in
accordance with the terms of this Agreement (including without limitation the
Servicing Standard) and the Pooling and Servicing Agreement. If such request
includes a Category 1 Consent Aspect, then Master Servicer shall make a
Materiality Determination regarding such Category 1 Consent Aspect and notify
Primary Servicer of such determination within five (5) Business Days. Failure of
the Master Servicer to notify the Primary Servicer in writing of the Materiality
Determination within five (5) Business Days following the Primary Servicer's
delivery of notice of a Category 1 Consent Aspect shall be deemed to constitute
a determination that the Category 1 Consent Aspect is not material, and Primary
Servicer may then proceed to process such Category 1 Request in accordance with
the terms of this Agreement without further consent of Master Servicer or
Special Servicer.
b) Primary Servicer shall evaluate the Category 1 Request and process such
request to meet the requirements set forth in the loan documents for the
applicable Mortgage Loan ("Loan Documents") in a manner that complies with the
terms of this Agreement and the Pooling and Servicing Agreement. Such evaluation
and processing may commence, and continue but may not be completed prior to
Primary Servicer's notice to Master Servicer of the Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request in accordance with the terms of the
Loan Documents, this Agreement and the Pooling and Servicing Agreement.
c) Notwithstanding the foregoing, the following additional requirements
shall apply to particular types or aspects of Category 1 Requests:
(i) If a Mortgagor requests consent to transfer the related Mortgaged
Property and assign the related Mortgage Loan (other than a
Specially Serviced Mortgage Loan) to another Person who shall
assume the Mortgage Loan and the Loan Documents expressly permit
such assignment and assumption, subject to any conditions set
forth in the Loan Documents, Primary Servicer may treat such
request as a Category 1 Request but shall, in addition to the
other provisions of this Section 1 of Exhibit B-2(c), seek the
prior written consent of Special Servicer prior to consenting to
such assignment and assumption in accordance with the terms of
Section 8.7 of the Pooling and Servicing Agreement (subject to
any time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of such
consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items set forth on Appendix 1
of this Agreement relating to such assignment and assumption. For
the purpose of the foregoing sentence, the term "expressly
permits" shall have the meaning assigned to it in Section 8.7 of
the Pooling and Servicing Agreement.
(ii) If a Mortgagor requests consent to place an additional lien,
monetary encumbrance or mezzanine financing on the related
Mortgaged Property and the Loan Documents expressly permit such
additional lien, monetary encumbrance or mezzanine financing,
subject to any conditions set forth in the Loan Documents,
Primary Servicer may treat such request as a Category 1 Request
but shall, in addition to the other provisions of this Section 1
of Exhibit B-2(c), seek the prior written consent of Special
Servicer prior to consenting to such additional lien, monetary
encumbrance or mezzanine financing in accordance with the terms
of Section 8.7 of the Pooling and Servicing Agreement (subject to
any time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of such
consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items set forth on Appendix 2
of this Agreement relating to such additional lien, monetary
encumbrance or mezzanine financing. For the purpose of the
foregoing sentence, the term "expressly permits" shall have the
meaning assigned to it in Section 8.7 of the Pooling and
Servicing Agreement.
(iii) If Primary Servicer notifies Master Servicer of a Category 1
Consent Aspect and Master Servicer makes a Materiality
Determination and notifies Primary Servicer within the time
period specified above that a Category 1 Consent Aspect is
material, then Primary Servicer shall treat such request as a
Category 1 Request, but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to the
applicable Category 1 Request, which consent shall not be
withheld or delayed unreasonably, and any such decision of
Special Servicer shall relate only to the Category 1 Consent
Aspect and shall be in accordance with the terms of the Loan
Documents and the Servicing Standard. Failure of the Special
Servicer to notify the Primary Servicer in writing of Special
Servicer's determination to grant or withhold such consent,
within three (3) Business Days following the Primary Servicer's
delivery of the request for consent to the Category 1 Consent
Aspect, shall be deemed to constitute a grant of such consent.
d) Upon conclusion of the negotiations of the documentation for the
Category 1 Request, Primary Servicer may execute and deliver the operative
documents to be executed to effect the Category 1 Request and take the other
actions necessary or appropriate to conclude such request, in each case in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
e) Concurrently with the execution of this Agreement, Master Servicer shall
provide to Primary Servicer a counterpart original of the Power of Attorney
executed by the Trust in favor of the Master Servicer and shall execute and
deliver to Primary Servicer a Power of Attorney attached to this Agreement as
Exhibit C. Primary Servicer shall promptly notify Master Servicer of the
execution and delivery of any document on behalf of the Master Servicer and
Trustee under such Power of Attorney ("POA Notice").
f) Upon the request of Primary Servicer, Master Servicer shall execute and
deliver the documents necessary or appropriate to effect a Category 1 Request.
Such request shall not relieve Primary Servicer of its obligations under this
Agreement regarding a Category 1 Request, including without limitation its
obligation to evaluate and process such request in accordance with this
Agreement and the Pooling and Servicing Agreement and any indemnification
obligation of Primary Servicer.
g) Upon completion of each Category 1 Request, Primary Servicer shall
promptly (but in no event more than five (5) Business Days after concluding such
request) notify Master Servicer and shall accompany such notice with a brief
summary of the Category 1 Request, a brief summary of Primary Servicer's
analysis and decision regarding such request, a POA Notice (if required) and a
counterpart original or copy of the operative documents executed or received to
effect the Category 1 Request.
2. CATEGORY 2 REQUESTS:
a) If Primary Servicer classifies a Post Closing Request as a Category 2
Request, it shall promptly (but in no event more than five (5) Business Days
after Primary Servicer's receiving such request) notify Master Servicer and
Special Servicer of receiving such request, of the type of request and of
Primary Servicer's classification of the Post Closing Request as a Category 2
Request.
(i) If such type of request has not previously been the subject of a
Category 2 Request or a Requirements List (as defined below) has
not previously been provided to Primary Servicer, then Primary
Servicer shall request from Special Servicer a detailed list of
the requirements to be satisfied for such request (the
"Requirements List"). Special Servicer shall promptly (but in no
event more than five (5) Business Days after receiving
notification of such request) provide to Primary Servicer a
Requirements List for such request.
(ii) If the type of Category 2 Request has previously been the subject
of a Post Closing Request, then Primary Servicer shall submit the
existing Requirements List to Special Servicer. Primary Servicer
may use such Requirements List for such request unless Special
Servicer provides to Primary Servicer a replacement Requirements
List within five (5) Business Days of such notice.
b) A Requirements List (i) shall in no event be more burdensome than that
required by Special Servicer of other loans in the Trust for similar Post
Closing Requests; and (ii) shall not require Primary Servicer to incur
additional third party costs or expenses.
c) Primary Servicer shall then use diligent efforts to collect and assemble
the items on the applicable Requirements List. Upon such collection and
assembly, Primary Servicer shall seek the prior written consent of the Special
Servicer prior to consenting to such request. If the Primary Servicer recommends
to approve such assignment, the Primary Servicer shall provide to the Special
Servicer and Master Servicer a copy of such recommendation and the materials
upon which such recommendation is based and (A) the Special Servicer shall have
the right hereunder to grant or withhold consent to any such request and the
Special Servicer shall not unreasonably withhold its consent and any such
decision of the Special Servicer in account with the Servicing Standard, (B)
failure of the Special Servicer to notify the Primary Servicer within five
Business Days following the delivery of the Primary Servicer's recommendation of
its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Primary Servicer shall not permit
any such request unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as described in
the preceding clause (B). Along with its recommendation, the Primary Servicer
shall provide a breakdown of the appropriate division of fees, if applicable.
d) Upon conclusion of the negotiations of the documentation for the
Category 2 Request, Primary Servicer may execute and deliver the operative
documents to be executed to effect the Category 2 Request and take the other
actions necessary or appropriate to conclude such request, in each case in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
e) Concurrently with the execution of this Agreement, Master Servicer shall
provide to Primary Servicer a counterpart original of the Power of Attorney
executed by the Trust in favor of the Master Servicer and shall execute and
deliver to Primary Servicer a Power of Attorney attached to this Agreement as
Exhibit C. Primary Servicer shall promptly notify Master Servicer of the
execution and delivery of any document on behalf of the Master Servicer and
Trustee under such Power of Attorney ("POA Notice").
f) Upon the request of Primary Servicer, Master Servicer shall execute and
deliver the documents necessary or appropriate to effect a Category 2 Request.
Such request shall not relieve Primary Servicer of its obligations under this
Agreement regarding a Category 2 Request, including without limitation its
obligation to evaluate and process such request in accordance with this
Agreement and the Pooling and Servicing Agreement and any indemnification
obligation of Primary Servicer.
g) Upon completion of each Category 2 Request, Primary Servicer shall
promptly provide Master Servicer and Special Servicer with a copy of the
operative documents executed or received to effect the Category 2 request.
3. CATEGORY 3 REQUESTS:
a) If Primary Servicer classifies a Post Closing Request as a Category 3
Request, it shall promptly (but in no event more than five (5) Business Days
after receiving such request) notify Master Servicer and Special Servicer of
receiving such request and of Primary Servicer's classification of the Post
Closing Request as a Category 3 Request and shall refer Category 3 Request to
the Special Servicer for handling in accordance with the Pooling and Servicing
Agreement.
b) Upon such referral, Primary Servicer shall notify the applicable
Mortgagor of such referral and shall direct the Mortgagor that all further
correspondence and interaction regarding the applicable Category 3 Request shall
be directed to and through the Special Servicer. Primary Servicer shall forward
all correspondence and other information regarding such request in its
possession to Special Servicer.
B. DISPUTE OF CLASSIFICATION.
1. NOTIFICATION OF DISPUTE. If either Master Servicer or Special Servicer
disputes the classification of Primary Servicer of any Post Closing Request,
then Master Servicer or Special Servicer, as applicable, shall notify Primary
Servicer of such dispute promptly (but in no event more than five (5) Business
Days from Primary Servicer's notice of such classification) in writing and the
specific reasons for such dispute. The parties shall then work in good faith for
a period not more than five (5) Business Days to resolve the classification of
the Post Closing Request. Primary Servicer's classification of a Post Closing
Request shall govern the handling of such request absent Primary Servicer's
receipt of notice of such dispute within the specified time period but shall not
diminish the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement.
2. RESOLUTION OF DISPUTE IN ABSENCE OF AGREEMENT. If after such good faith
efforts to resolve such classification dispute the parties cannot agree to a
classification, then the following shall apply: For Mortgage Loans with a
principal balance on the Cut-Off Date in excess of two percent (2%) of the then
Aggregate Principal Balance, then the good faith classification of the Master
Servicer or Special Servicer, as applicable, shall govern. For Mortgage Loans
with a principal balance on the Cut-Off Date of in an amount equal to or less
than two percent (2%) of the then Aggregate Principal Balance, then the good
faith classification of the Primary Servicer shall govern; provided that, in no
event, shall Primary Servicer's classification govern if such classification
would, in the sole judgment of Master Servicer, conflict with any provision of
the Pooling and Servicing Agreement or result in a default by Master Servicer or
Special Servicer under the Pooling and Servicing Agreement.
3. PROCESSING OF POST CLOSING REQUEST DURING DISPUTE. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist.
<PAGE>
EXHIBIT B-3
FORMS OF PROPERTY INSPECTION REPORTS
Section 2.1(d) sets forth the obligation and timing of property inspection
reports to be delivered annually by Primary Servicer to Master Servicer on the
Mortgage Loans. Attached as this Exhibit B-3 is the form of the report described
in such section.
<PAGE>
<TABLE>
===================================================================================================
PRINCIPAL CAPITAL MANAGEMENT
COMMERCIAL MORTGAGE SERVICING
<CAPTION>
ANNUAL PROPERTY EVALUATION REPORT - Report Lender No:
OFFICE/RETAIL/IND. Date:
===================================================================================================
<S> <C> <C>
-------------------------------------------------
Master Servicer
File No:
-------------------------------------------------
Property Address:
-------------------------------------------------
Property Type:
-------------------------------------------------
Primary Use:
-------------------------------------------------
Secondary Use:
-------------------------------------------------
Other Use:
-------------------------------------------------
Current Occupancy:
-------------------------------------------------
Building Size Net:
-------------------------------------------------
No. Of Buildings:
-------------------------------------------------
No. Of Units:
-------------------------------------------------
===================================================================================================
Year Built: Managed by:
---------------------------------------------------------------------------------------------------
Year Renovated: Phone:
---------------------------------------------------------------------------------------------------
Land Size: On-Site:
===================================================================================================
===================================================================================================
---------------------------------------------------------------------------------------------------
Date of Property Inspection: Inspected by:
---------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring: Properties):
<CAPTION>
Deferred
Exterior Excellent Good Fair Poor Maintenance
--------
<S> <C> <C> <C> <C> <C>
Landscaping ---- ---- ---- ---- ----
| | | | | | | | | |
---- ---- ---- ---- ----
Paved Areas ---- ---- ---- ---- ----
| | | | | | | | | |
---- ---- ---- ---- ----
Sidewalks ---- ---- ---- ---- ----
| | | | | | | | | |
---- ---- ---- ---- ----
Exterior Finish ---- ---- ---- ---- ----
| | | | | | | | | |
---- ---- ---- ---- ----
Roof ---- ---- ---- ---- ----
| | | | | | | | | |
---- ---- ---- ---- ----
General Maintenance ---- ---- ---- ---- ----
| | | | | | | | | |
---- ---- ---- ---- ----
---------------------------------------------------------------------------------------------------
Comments (explain deferred maintenance):
===================================================================================================
</TABLE>
<PAGE>
<TABLE>
==============================================================================================================
<CAPTION>
Deferred
Interior Excellent Good Fair Poor N/A Maintenance
--------
<S> <C> <C> <C> <C> <C> <C>
Entry/Hallways ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Walls/Ceilings ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Lighting ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Carpet/Floor
Covering ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Stairs ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Elevators ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Kitchen/Bathrooms ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
HVAC/Mechanical ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Functional Utility ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
Overall Physical
Condition ---- ---- ---- ---- ---- ----
| | | | | | | | | | | |
---- ---- ---- ---- ---- ----
--------------------------------------------------------------------------------------------------------------
Comments:
==============================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Market Strength Strong Stable Weak
---------------
---- ---- ----
| | | | | |
---- ---- ----
Economic Trend Improving Stable Declining
--------------
---- ---- ----
| | | | | |
---- ---- ----
Neighborhood Trend Improving Stable Declining
------------------
---- ---- ----
| | | | | |
---- ---- ----
Maintenance of
Neighboring properties Excellent Good Fair Poor
----------------------
---- ---- ---- ----
| | | | | | | |
---- ---- ---- ----
Occupancy of
Neighboring Properties Excellent Good Fair Poor
----------------------
---- ---- ---- ----
| | | | | | | |
---- ---- ---- ----
--------------------------------------------------------------------------------------------------------------
Regional Analysis:
==============================================================================================================
</TABLE>
<PAGE>
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL PASS-THROUGH CERTIFICATES, SERIES 2000-PRIN
NOTE: SOME LISTED TASKS DESIGNATE MORE THAN ONE PARTY TO PERFORM THAT FUNCTION
BY PLACING AN "X" IN MORE THAN ONE COLUMN. IN THESE INSTANCES, THE
PARTIES SHALL FOLLOW ANY SPECIFIC GUIDANCE ABOUT THE ALLOCATION OF
RESPONSIBILITIES IN COMPLETING THE TASK FOUND IN THE TERMS OF THIS
AGREEMENT (INCLUDING EXHIBITS B-2 AND B-3). IN THE ABSENCE OF SPECIFIC
ALLOCATION OF OBLIGATIONS IN THIS AGREEMENT, THE PARTIES SHALL WORK IN
GOOD FAITH TO ALLOCATE RESPONSIBILITIES IN A FAIR AND EQUITABLE MANNER IN
ACCORDANCE WITH THIS AGREEMENT AND THE POOLING AND SERVICING AGREEMENT.
<TABLE>
-----------------------------------------------------------------------------------------------------------------
<CAPTION>
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Asset Files
-----------------------------------------------------------------------------------------------------------------
Original credit file management X
-----------------------------------------------------------------------------------------------------------------
Original collateral file (security) X
-----------------------------------------------------------------------------------------------------------------
Authorized parties list for request for release of collateral from X X
Trustee
-----------------------------------------------------------------------------------------------------------------
Establish servicing files criteria X X
-----------------------------------------------------------------------------------------------------------------
Provide access to servicing files and copies of servicing files or of X
specific docs upon request to the Master Servicer
-----------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee upon request and certification X
of Primary Servicer
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
2. Property Taxes
-----------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly tax delinquency reports X
-----------------------------------------------------------------------------------------------------------------
Monitoring of tax status - Loans with/without escrows X
-----------------------------------------------------------------------------------------------------------------
Recommendation of payment of taxes - Loans with/without escrows X
-----------------------------------------------------------------------------------------------------------------
Notification of advance requirement 3 business days prior to advance X
being required
-----------------------------------------------------------------------------------------------------------------
Payment of taxes - with sufficient escrows X
-----------------------------------------------------------------------------------------------------------------
Payment of taxes - with escrow shortfall X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
3. Property Insurance
-----------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly insurance tickler reports X
-----------------------------------------------------------------------------------------------------------------
Monitoring of insurance status - Loans with/without escrows X
-----------------------------------------------------------------------------------------------------------------
Ensure insurance carrier meets Pooling and Servicing Agreement X
qualifications
-----------------------------------------------------------------------------------------------------------------
Ensure insurance in favor of the Master Servicer on behalf of the X
Trustee
-----------------------------------------------------------------------------------------------------------------
Recommendation of payment or force placement of insurance with/without X
escrow
-----------------------------------------------------------------------------------------------------------------
Notification of advance requirement or force placement of insurance 3 X
business days prior to advance being required
-----------------------------------------------------------------------------------------------------------------
Payment of insurance - with sufficient escrows X
-----------------------------------------------------------------------------------------------------------------
Payment of insurance or force placement - with escrow shortfall X
-----------------------------------------------------------------------------------------------------------------
Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Preparation and presentment of claims X
-----------------------------------------------------------------------------------------------------------------
Collection of insurance proceeds X
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Preparation and presentment of claims X
-----------------------------------------------------------------------------------------------------------------
Collection of insurance proceeds X
-----------------------------------------------------------------------------------------------------------------
Consent to application of insurance proceeds X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
4. UCC Continuation Filings
-----------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly UCC tickler report X
-----------------------------------------------------------------------------------------------------------------
Maintain tickler system of refiling the dates on all Loans X
-----------------------------------------------------------------------------------------------------------------
File UCC Continuation Statements X
-----------------------------------------------------------------------------------------------------------------
Pay recording fees X
-----------------------------------------------------------------------------------------------------------------
Monitor tickler system X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
5. Collection/Deposit/Distribution of P&I payments and Principal
Prepayments
-----------------------------------------------------------------------------------------------------------------
Collection and deposit of loan P&I payments X
-----------------------------------------------------------------------------------------------------------------
Remittance of available Primary Servicer P&I payments (net of X
Servicing Fee)
-----------------------------------------------------------------------------------------------------------------
Provide Collection Reports to Master Servicer X
-----------------------------------------------------------------------------------------------------------------
Distribution of P&I payments to the Trustee X
-----------------------------------------------------------------------------------------------------------------
Distribution of Special Servicer compensation X
-----------------------------------------------------------------------------------------------------------------
Approval of Prepayment Premiums X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
6. Collection/Deposit/Disbursement of Reserves
-----------------------------------------------------------------------------------------------------------------
Collection and deposit of reserves X
-----------------------------------------------------------------------------------------------------------------
Disbursement of reserves X
-----------------------------------------------------------------------------------------------------------------
Provide monthly reconciliation of individual and commingled reserves X
detailing all disbursements
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
7. Customer Billing, Collection and Customer Service
-----------------------------------------------------------------------------------------------------------------
Contact delinquent borrowers by phone 3 days after delinquent date X
-----------------------------------------------------------------------------------------------------------------
Send 30 day delinquent notices X
-----------------------------------------------------------------------------------------------------------------
Send notice of balloon payment to each Mortgagor one year, X 180,
and 90 days prior to the related maturity date
-----------------------------------------------------------------------------------------------------------------
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
8. Escrows
-----------------------------------------------------------------------------------------------------------------
Setup and monitor Escrow Accounts including escrow analysis X
-----------------------------------------------------------------------------------------------------------------
Pay borrower investment income required X
-----------------------------------------------------------------------------------------------------------------
Provide monthly reconciliation of individual and commingled escrow X
accounts detailing all disbursements
-----------------------------------------------------------------------------------------------------------------
Prepare annual escrow analysis X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
9. Loan payment history/calculation
-----------------------------------------------------------------------------------------------------------------
Maintain loan payment history X
-----------------------------------------------------------------------------------------------------------------
Create payoff/reinstatement statements and telecopy to Master Servicer X
-----------------------------------------------------------------------------------------------------------------
Approve payoff calculations and telecopy approval to Primary Servicer X
within five (5) Business Days
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
10. Monitoring of Financial and Legal Covenants
-----------------------------------------------------------------------------------------------------------------
Collect annual operating statements, budgets, rent rolls and borrower X
financial statements, as applicable
-----------------------------------------------------------------------------------------------------------------
Deliver one (1) copy of annual operating statements, X budgets, rent
rolls, and borrower financial statement with the operating statement
analysis
-----------------------------------------------------------------------------------------------------------------
Deliver 1 copy of completed annual operating statement analysis using the X
Operating Statement Analysis Report by June 15th of each subsequent year
commencing on June 15, 2001.
-----------------------------------------------------------------------------------------------------------------
Complete CMSA Loan Setup File for Mortgage Loans X X
-----------------------------------------------------------------------------------------------------------------
Complete CMSA Loan Periodic Update File for Mortgage Loans X
-----------------------------------------------------------------------------------------------------------------
Complete and deliver CMSA Property File for Mortgage Loans X
-----------------------------------------------------------------------------------------------------------------
CMSA Supplemental Reports
-----------------------------------------------------------------------------------------------------------------
Complete Servicer Watch List X
-----------------------------------------------------------------------------------------------------------------
Complete Comparative Financial Status Report X
-----------------------------------------------------------------------------------------------------------------
Delinquent Loan Status Report X
-----------------------------------------------------------------------------------------------------------------
REO Status Report X
-----------------------------------------------------------------------------------------------------------------
Historical Loan Status Report X
-----------------------------------------------------------------------------------------------------------------
Historical Liquidation Report X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
11. Advancing
-----------------------------------------------------------------------------------------------------------------
Determination of Non-Recoverability X
-----------------------------------------------------------------------------------------------------------------
Making P&I Advance on Post Determination Date Mortgage X
Loans pursuant to Section 5.7
-----------------------------------------------------------------------------------------------------------------
Notifying Master Servicer of payments on Post Determination Date Mortgage X
Loans during or at end of respective grace periods pursuant to Section 5.7
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
12. Borrower Inquiries/Performing Loans
-----------------------------------------------------------------------------------------------------------------
Performing Loans - respond to routine billing questions X
-----------------------------------------------------------------------------------------------------------------
Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Assumptions & Due on sale:
-----------------------------------------------------------------------------------------------------------------
Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis of request X
-----------------------------------------------------------------------------------------------------------------
Approval of assumption X
-----------------------------------------------------------------------------------------------------------------
Consent to assumption X
-----------------------------------------------------------------------------------------------------------------
Close assumption X
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Assumptions & Due on sale:
-----------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
-----------------------------------------------------------------------------------------------------------------
Approval of assumption X
-----------------------------------------------------------------------------------------------------------------
Consent to assumption X
-----------------------------------------------------------------------------------------------------------------
Close assumption (directly with Borrower) X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
-----------------------------------------------------------------------------------------------------------------
Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis of request X
-----------------------------------------------------------------------------------------------------------------
Approval of additional lien, monetary encumbrance or mezzanine X
financing
-----------------------------------------------------------------------------------------------------------------
Consent to additional lien, monetary encumbrance or mezzanine X
financing
-----------------------------------------------------------------------------------------------------------------
Close additional lien, monetary encumbrance or mezzanine financing X
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
---------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
---------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
---------------------------------------------------------------------------------------------------------------
Approval of additional lien, monetary encumbrance or mezzanine X
financing
---------------------------------------------------------------------------------------------------------------
Consent to additional lien, monetary encumbrance or mezzanine X
financing
---------------------------------------------------------------------------------------------------------------
Close additional lien, monetary encumbrance or mezzanine financing X
(directly with Borrower)
---------------------------------------------------------------------------------------------------------------
Modifications (Non-Money Terms), Waivers, Consents and Extensions up to 60
days (not otherwise provided in this Agreement):
---------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
---------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
---------------------------------------------------------------------------------------------------------------
Approval of modification and extensions up to 60 days X
---------------------------------------------------------------------------------------------------------------
Consent to modification and waivers and other consents (not otherwise X
provided in this Agreement)
---------------------------------------------------------------------------------------------------------------
Closing Documents and Closing X
---------------------------------------------------------------------------------------------------------------
Modification (Money Terms): X
---------------------------------------------------------------------------------------------------------------
Extensions of Maturity Date (more than 60 days): X
---------------------------------------------------------------------------------------------------------------
Response to request for Discounted Payoffs, Workouts, Restructures, X
Forbearances, Casualties and Condemnation
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
13. Monthly Reporting (Hardcopy & Electronic mail)
---------------------------------------------------------------------------------------------------------------
Day One Report X
---------------------------------------------------------------------------------------------------------------
Delinquency and past due reporting on all Loans X
---------------------------------------------------------------------------------------------------------------
Report of payment/account status (trial balance/transaction detail) X
---------------------------------------------------------------------------------------------------------------
Cash account reconciliations - Copies of monthly bank statements for all X
deposit, escrow and reserve accounts
---------------------------------------------------------------------------------------------------------------
Other Payment and Mortgage Loan Status Reports designated as monthly in X
this Agreement
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
14. Category 1 Requests
---------------------------------------------------------------------------------------------------------------
Release of Collateral
---------------------------------------------------------------------------------------------------------------
Determination if collateral should be released X
---------------------------------------------------------------------------------------------------------------
Consent to release collateral X
---------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee upon Primary Servicer X
request and certification
---------------------------------------------------------------------------------------------------------------
Preparation and recordation of release deeds all Loans (full and X
partial)
---------------------------------------------------------------------------------------------------------------
Category 2 Requests
---------------------------------------------------------------------------------------------------------------
Release of Collateral
---------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
---------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
---------------------------------------------------------------------------------------------------------------
Determination if collateral should be released X
---------------------------------------------------------------------------------------------------------------
Consent to release collateral X
---------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee X
---------------------------------------------------------------------------------------------------------------
Preparation and recordation of release deeds all Loans (full and X
partial)
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
15. Property Annual Inspections
---------------------------------------------------------------------------------------------------------------
Conduct site inspection per Pooling and Servicing Agreement requirement X
---------------------------------------------------------------------------------------------------------------
Provide 1 copy of site inspection reports to the Master Servicer and other X
other Person identified in Section 8.17 of the Pooling and Servicing
Agreement within 30 days of inspection
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
16. Preparation of servicing transfer letters X
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting X
requirements) and delivery of copies to the Master Servicer by January 31st
of each year
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
18. Provide Annual Officer's Certificate as to compliance to Master Servicer by X
April 1 of each year
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
19. Provide Annual Independent Accountant's Servicing Report (USAP) to Master X
Servicer by April 1 of each year
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
20. Compensation
---------------------------------------------------------------------------------------------------------------
Primary Servicer Fee X
---------------------------------------------------------------------------------------------------------------
Investment earnings on Primary Servicer Collection Account X
---------------------------------------------------------------------------------------------------------------
Investment earnings on tax & insurance reserves not payable to borrower X
---------------------------------------------------------------------------------------------------------------
Investment earning on reserve accounts not payable to borrower X
---------------------------------------------------------------------------------------------------------------
Late charges to the extent collected from borrower (offsets advance X
interest per Pooling and Servicing Agreement)
Agreement)
---------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B-5
CMSA INVESTOR REPORTING PACKAGE
Section 2.1(c)(viii) of the Agreement sets forth the types and timing of
the CMSA Investor Reporting Package, certain elements of which are to be
delivered as specified in this Agreement. Attached as this Exhibit B-5 are the
forms of the reports described in such section.
Exhibit B-5(a): CMSA Loan Setup File
Exhibit B-5(b): CMSA Loan Periodic Update File
Exhibit B-5(c): CMSA Property File
Exhibit B-5(d): Servicer Watch List
Exhibit B-5(e): Comparative Financial Status Report
Exhibit B-5(f): Delinquent Loan Status Report
Exhibit B-5(g): REO Status Report
Exhibit B-5(h): Historical Loan Modification Report
Exhibit B-5(i): Historical Liquidation Report
Exhibit B-5(j): Operating Statement Analysis Report
<PAGE>
EXHIBIT B-5(A)
CMSA Loan Setup File
<PAGE>
EXHIBIT B-5(B)
CMSA Loan Periodic Update File
<PAGE>
EXHIBIT B-5(C)
CMSA Property File
<PAGE>
EXHIBIT B-5(D)
Servicer Watch List
<PAGE>
EXHIBIT B-5(E)
Comparative Financial Status Report
<PAGE>
EXHIBIT B-5(F)
Delinquent Loan Status Report
<PAGE>
EXHIBIT B-5(G)
REO Status Report
<PAGE>
EXHIBIT B-5(H)
Historical Loan Modification Report
<PAGE>
EXHIBIT B-5(I)
Historical Liquidation Report
<PAGE>
EXHIBIT B-5(J)
Operating Statement Analysis Report
<PAGE>
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM MASTER SERVICER
RECORDING REQUESTED BY:
[ ]
AND WHEN RECORDED MAIL TO:
[ ]
Attention: Commercial Mortgage Pass-
Through Certificates Series 2000-PRIN
Space above this line for Recorder's use
------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that [ ], acting solely in its
capacity as Master Servicer ("Master Servicer"), under the Pooling and Servicing
Agreement dated as of ___________, 2000 (the "Pooling and Servicing Agreement")
and a Primary Servicing Agreement dated as of ___________, 2000 (the "Primary
Servicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2000-PRIN, does hereby nominate, constitute
and appoint [ ], as Primary Servicer under the Primary Servicing Agreement
("Primary Servicer"), 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 Primary Servicer to service and administer the Mortgage Loans (as defined
in the Primary Servicing Agreement) in connection with the performance by
Primary Servicer of its duties as Primary Servicer under the Primary Servicing
Agreement, giving and granting unto Primary 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
Primary Servicer shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ______, 20__.
[ ], acting solely in its capacity as
Master Servicer under the Pooling and
Servicing Agreement and the Primary
Servicing Agreement
By:_______________________________________
Name:
Title:
<PAGE>
APPENDIX 1
ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office,
etc.)
ADDRESS: Property Address
City, State, zip code
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date
Origination Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
3. How will title be held?
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location,
b. Prior year NOI and DSCR and Pro-forma NOI DSCR;
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
--------------------------------------------------------
Purchase price $
--------------------------------------------------------
Buyer down payment $ (%)
--------------------------------------------------------
Estimated closing date
--------------------------------------------------------
1% loan fee split:
--------------------------------------------------------
Primary Servicer - $
--------------------------------------------------------
Special Servicer - $
--------------------------------------------------------
Most recent appraised value $
according to appraisal in Primary
Servicer's possession
--------------------------------------------------------
Loan-to-value as of initial %
underwriting
--------------------------------------------------------
Occupancy as of %
--------------------------------------------------------
12/31/XX NOI $
--------------------------------------------------------
Debt service coverage x
--------------------------------------------------------
FINANCIAL CONDITION OF PROPOSED MORTGAGOR/GUARANTOR:
1. Explain background and experience of the proposed Mortgagor/principals and
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare the
creditworthiness and experience of proposed Mortgagor to that of the
transferring Mortgagor to the extent information about transferring
Mortgagor is available
2. Explain results of credit checks, legal searches and banking credit
references (two required)
3. If Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
4. Describe whether assigning Mortgagor will be released from its obligations
under the Loan Documents [from and after the date of the transfer]. If so,
describe extent of release and rationale for it.
PROPERTY FINANCIAL SUMMARY: (See attached most recent Income and Expense
Statements for Mortgaged Property and operating statement review)
PROPERTY MANAGEMENT SUMMARY:
1. Who is proposed property management firm
2. Background and Experience
CURRENT MARKET CONDITIONS:
Briefly state material current real estate market dynamics and economic
influences that may affect the operational performance of the property.
RECOMMENDATION:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weakness mitigated?
(bullet points are fine)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting solely in
its capacity as Primary Servicer
By:
------------------------------------
Name:
Title:
Date:
------------------------------------
Consent to Assignment & Assumption is given:
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting
solely in its capacity as Special Servicer
By:
------------------------------------
Name:
Title:
Date:
------------------------------------
<PAGE>
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
1. Financial statements of purchasing entity (audited, if available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and
operating statement review
6. Purchase and Sale Agreement
7. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
8. Proposed property management agreement
9. Description and source of equity being used for the purchase, if
available
10. Most recent Rent Roll
<PAGE>
APPENDIX 2
ADDITIONAL LIEN, MONETARY ENCUMBRANCE OR MEZZANINE FINANCING
SUBMISSION TO SPECIAL SERVICER
MORTGAGOR:
PRIMARY SERVICER LOAN #:
COLLATERAL TYPE:
ADDRESS OF PROPERTY: (Retail, Industrial, Apartments, Office, etc.)
ASSET STATUS As of:
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine
financing contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR for prior year,
and, if available, prior two (2) years
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
--------------------------------------------------------
Estimated closing date for financing:
--------------------------------------------------------
Administrative fee to Primary $
Servicer
--------------------------------------------------------
Additional Fees, if any
--------------------------------------------------------
- Primary Servicer $
--------------------------------------------------------
- Special Servicer $
--------------------------------------------------------
Most recent appraised value $
according to appraisal in Primary
Servicer's possession
--------------------------------------------------------
Loan-to-value as of initial %
underwriting
--------------------------------------------------------
Occupancy as of %
--------------------------------------------------------
12/31/XX NOI $
--------------------------------------------------------
Debt service coverage as of x
--------------------------------------------------------
PROPERTY FINANCIAL SUMMARY: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
CURRENT MARKET CONDITIONS:
Briefly state material current real estate market dynamics and economic
influences that may affect the operational performance of the property.
RECOMMENDATION:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weakness mitigated?
(bullet points are fine)
<PAGE>
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting solely in
its capacity as Primary Servicer
By:
------------------------------------
Name:
Title:
Date:
------------------------------------
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given: PRINCIPAL CAPITAL MANAGEMENT, LLC, acting solely in
its capacity as Special Servicer
By:
------------------------------------
Name:
Title:
Date:
------------------------------------
<PAGE>
SCHEDULE OF EXHIBITS TO ADDITIONAL LIEN, MONETARY ENCUMBRANCE OR MEZZANINE
FINANCING SUBMISSION
1. Most recent Income & Expense Statement for property and operating
statement review
2. [FOR MEZZANINE FINANCING: If available from Mortgagor, diagram of
proposed ownership structure, including percentages of ownership]
3. [FOR SUBORDINATE MORTGAGE: Copy of Subordination/Intercreditor
Agreement in substantially the form to be executed with subordinate lender]
4. Copy of subordinate loan documents in substantially the form to be
executed
5. Most recent Rent Roll
<PAGE>
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 20___
TO: The Depository Trust Company
Clearstream Banking or
Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Wells Fargo Bank, National Association, as Master Servicer
LaSalle Bank National Association, as Trustee
and as Certificate Registrar
This is to notify you as to the transfer of the beneficial interest
in $_______________ of Morgan Stanley Dean Witter Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-PRIN, Class __(the
"Certificates").
The undersigned is the owner of a beneficial interest in the Class
__ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [Clearstream] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [Clearstream] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made
in accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and
in accordance with any applicable securities laws of any state of the United
States and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act]
and that the purchaser is acquiring beneficial interests in the applicable
Certificate1 for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than U.S. $100,000 and integral multiples of U.S. $1 in excess thereof for
each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
------------------------------------
[Name], [Chief Financial
or other Executive Officer]
--------
1. [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR
UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER
HELD IN GLOBAL FORM.]
<PAGE>
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-PRIN, CLASS (THE "CERTIFICATES")
TO: LaSalle Bank National Association, as Trustee and as Certificate
Registrar
Attn: Corporate Trust Services (CMBS)
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of September 1, 2000 (the "Pooling and Servicing
Agreement") among you, Morgan Stanley Dean Witter Capital I Inc., ABN AMRO Bank
N.V., Principal Capital Management, LLC, and Wells Fargo Bank, National
Association, U.S. $__________ principal amount of the above-captioned
Certificates held by us or on our behalf are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Certificates in transactions
that did not require registration under the United States Securities Act of
1933, as amended (the "Securities Act"). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Securities
Act.
We further certify that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: [MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
Brussels office, as operator of the
Euroclear System]
or
[CLEARSTREAM BANKING]
By: _______________________________
<PAGE>
EXHIBIT J
[RESERVED]
<PAGE>
EXHIBIT K
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT K
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
September 15, 2000, between Principal Life Insurance Company (the "Seller"), and
Morgan Stanley Dean Witter Capital I Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of September 1, 2000, between the Purchaser, as
depositor, Wells Fargo Bank National Association, as master servicer (the
"Master Servicer"), Principal Capital Management, LLC, as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). In
exchange for the Mortgage Loans, the Trust will issue to the Depositor
pass-through certificates to be known as Morgan Stanley Dean Witter Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-PRIN (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D and Class E Certificates (the "Public Certificates") will be sold by the
Purchaser to Morgan Stanley & Co. Incorporated ("MS&Co.") and Goldman, Sachs &
Co. (together with MS&Co., the "Underwriters"), pursuant to an Underwriting
Agreement, between the Purchaser and the Underwriters, dated September 15, 2000
(the "Underwriting Agreement"), and the Class X, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class R-I and Class R-II Certificates will
be sold by the Purchaser to Morgan Stanley & Co. Incorporated (in such capacity,
the "Initial Purchaser") pursuant to a Certificate Purchase Agreement, between
the Purchaser and the Initial Purchaser, dated September 15, 2000 (the
"Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus, dated September 7,
2000, as supplemented by a Prospectus Supplement, dated September 15, 2000
(together, the "Prospectus Supplement"), and the Initial Purchaser will offer
the Class X, Class F, Class G, Class H, Class J, Class K, Class L and Class M
Certificates (the "Private Certificates") for sale in transactions exempt from
the registration requirements of the Securities Act of 1933 pursuant to a
Private Placement Memorandum, dated September 15, 2000 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis (but subject to the
designation of Principal Capital Management, LLC as enduring primary servicer
(the "Primary Servicer") under the Pooling and Servicing Agreement), the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The
Cut-Off Date with respect to the Mortgage Loans (other than the Mortgage Loans
set forth on Schedule A) shall be September 1, 2000. The Cut-Off Date with
respect to the Mortgage Loans set forth on Schedule A shall be deemed to be
September 1, 2000. The Mortgage Loans will have an aggregate principal balance
as of the close of business on the Cut-Off Date of $597,985,115, after giving
effect to (a) with respect to the Mortgage Loans set forth on Schedule A, any
payments due on or before the applicable due date for each such Mortgage Loan
occurring during the month of September 2000, and (b) with respect to the
remaining Mortgage Loans, any payments due on or before the Cut-Off Date, in
each case whether or not such payments are received. The sale of the Mortgage
Loans shall take place on September 26, 2000 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by the Purchaser for the Mortgage Loans shall equal the amount
set forth as such purchase price on Exhibit 3 hereto. Such purchase price shall
be paid to the Seller by wire transfer in immediately available funds on the
Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 14).
SECTION 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby 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 as
of the Closing Date. The Mortgage Loan Schedule, as it may be amended from time
to time, on or prior to the Closing Date shall conform to the requirements of
this Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan. In
addition, not later than the 45th day following the Closing Date, the Seller
shall deliver to or on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Morgan Stanley Dean Witter Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-PRIN, without recourse, representation or warranty" or
if the original Mortgage Note is not included therein, then a lost note
affidavit, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon, (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if such original modification, consolidation
and extension agreements have been delivered to the appropriate recording office
for recordation and either has not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or has been lost
after recordation, true copies of such modifications, consolidations and
extensions certified by the Seller together with (i) in the case of a delay
caused by the public recording office, an Officer's Certificate of the Seller
stating that such original modification, consolidation or extension agreement
has been dispatched or sent to the appropriate public recording official for
recordation or (ii) in the case of an original modification, consolidation or
extension agreement that has been lost after recordation, a certification by the
appropriate county recording office where such document is recorded that such a
copy is a true and complete copy of the original recorded modification,
consolidation or extension agreement, and the originals of all assumption
agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, signed by the holder of
record in favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley Dean Witter Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-PRIN";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the Seller to be a true
and complete copy of the original Assignment of Leases submitted for recording,
together with (i) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by the
Seller to be a true and complete copy of the original assignment submitted for
recording, and (ii) an original assignment of such Assignment of Leases, in
recordable form, signed by the holder of record in favor of "LaSalle Bank
National Association, as Trustee for Morgan Stanley Dean Witter Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-PRIN," which
assignment may be effected in the related Assignment of Mortgage;
(g) The original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(i) UCC financing statements (together with all assignments thereof
to the Trustee), if any, executed and delivered in connection with the Mortgage
Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease;
(k) Copies of any lock-box agreements and intercreditor
agreements, if any, related to any Mortgage Loan;
(l) An original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, to be held by the Primary Servicer
or the Master Servicer, if an applicable Mortgage Loan has no Primary Servicer,
on behalf of the Trustee, and to be applied, drawn, reduced or released in
accordance with document evidencing or securing the applicable Mortgage Loan,
the Pooling and Servicing Agreement and any applicable primary servicing
agreement; and
(m) The original environmental indemnity agreement, if any,
related to any Mortgage Loan.
The original of each Letter of Credit referred to in clause (l)
above shall be delivered to the Primary Servicer within 45 days of the Closing
Date. In addition, a copy of any ground lease shall be delivered to the Primary
Servicer within 30 days of the Closing Date. Any failure to deliver such ground
lease shall constitute a Document Defect.
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer,
any Assistant Treasurer or any Counsel.
The Assignments of Mortgage and assignment of Assignment of Leases
referred to in clauses (d), (e) and (f) may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the extent
permitted by applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, the assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, solely because of a
delay caused by the public recording office where such document or instrument
has been delivered for recordation within such 45 day period, but the Seller
delivers a photocopy thereof (certified by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording), to the Trustee within such 45 day period, the Seller shall then
deliver within 90 days after the Closing Date the recorded document (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 Seller is, as
certified in writing to the Trustee no less often than monthly, in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date, provided, however, that with respect to the Mortgage Loans set
forth on Schedule A, the Trustee shall not be entitled to any payments of
principal or interest due on or before the applicable payment date for each such
Mortgage Loan occurring during the month of September 2000. All scheduled
payments of principal and interest due on or before the Cut-Off Date and
collected after the Cut-Off Date shall belong to the Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of the Seller, in the appropriate
public office for real property records, each assignment referred to in clauses
(d) and (f)(ii) above. Within 90 days following the Closing Date, the Seller
shall deliver and the Purchaser, the Trustee or the agents of either may submit
or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i) above. 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 prepare a substitute therefor or cure such
defect, and the Seller shall, at its own expense (except in the case of a
document or instrument that is lost by the Trustee), record or file, as the case
may be, and deliver such document or instrument in accordance with this Section
2.
Documents relating to the Mortgage Loans that are not required to be
delivered to the Trustee shall be shipped by the Seller to or on behalf of the
Master Servicer, on behalf of the Purchaser, on or prior to the Closing Date,
subject to the requirements of the Primary Servicing Agreement (as defined in
Section 6(j)).
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Trustee or the
Master Servicer as set forth herein, subject to the requirements of the Primary
Servicing Agreement. The Seller's and Purchaser's records shall reflect the
transfer of each Mortgage Loan from the Seller to the Purchaser and its assigns
as a sale, including, but not limited to the financial statements, computer
records and applicable filings and public announcements, if any, required by law
to comply with federal and state securities laws.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property is held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser, of a security interest in
all of the Seller's right, title, and interest, whether now owned or
hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the property described above, 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 the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) required to be delivered to or on behalf of the Trustee or the Master
Servicer pursuant to this Section 2 on or before the Closing Date is not so
delivered, or is not properly executed or is defective on its face, and the
Purchaser's acceptance of the related Mortgage Loan on the Closing Date shall in
no way constitute a waiver of such omission or defect or of the Purchaser's or
its successors' and assigns' rights in respect thereof pursuant to Section 5.
SECTION 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, the Underwriters, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, the Underwriters, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
SECTION 4. Representations and Warranties of the Seller and the
Purchaser. (a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule B attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Iowa. The
Seller has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
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 from
liabilities under applicable securities laws.
(iii) 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 Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) 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,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) 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.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's articles of organization or by-laws, (B) any
term or provision of any material agreement, contract, instrument or
indenture to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
its ability to perform its obligations and duties hereunder or result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its business
substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Seller Information (as defined
in that certain indemnification agreement, dated September 7, 2000,
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) relating to the Mortgage
Loans does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Notwithstanding anything contained herein to the contrary, this
subparagraph (vii) shall run exclusively to the benefit of the Purchaser
and no other party.
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the Purchaser
hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware with full
power and authority to carry on its business as presently conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iii) 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 that
has not been obtained or made by the Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(v) The Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans or consummation of any of the transactions contemplated
hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
SECTION 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller. (a) It is hereby acknowledged that the Seller shall make for
the benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Trustee pursuant to Section 2 is not delivered as and
when required, not properly executed or is defective on its face, or if there is
a breach of any of the representations and warranties required to be made by the
Seller regarding the characteristics of the Mortgage Loans or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case such
defect or breach materially and adversely affects the interests of the holders
of the Certificates (a "Material Document Defect" and a "Material Breach",
respectively), the party discovering such Material Document Defect or Material
Breach shall promptly (but in any event within three Business Days) notify the
other parties and within 85 days of the earlier of discovery by the Seller or
receipt by the Seller of notice of such Material Document Defect or such
Material Breach, as the case may be, the Seller shall be required to cure such
Material Document Defect or Material Breach; provided, however, the Purchaser or
its assignee shall extend the cure period an additional 85 days if the Seller
certifies to the Purchaser or its assignee, as applicable, that the Seller has
been diligently attempting to cure such breach within the 85 day period and such
Material Document Defect or Material Breach not cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code).
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured within the above
cure periods, the Seller shall, on or before the termination of such cure
periods, either (i) repurchase the related Mortgage Loan from the Purchaser or
its assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) if within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
related Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), at
its option replace any Mortgage Loan to which such defect relates with a
Qualifying Substitute Mortgage Loan. If such defect would cause the Mortgage
Loan to be other than a "qualified mortgage" (as defined in the Code), then
notwithstanding the previous sentence, repurchase or substitution must occur
within 85 days from the date the Seller was notified of the defect. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the Master Servicer or the Special Servicer on its behalf) shall
give written notice within three Business Days to the Seller of its discovery of
any Material Document Defect or Material Breach and prompt written notice to the
Seller in the event that any Mortgage Loan becomes a Specially Serviced Mortgage
Loan (as defined in the Pooling and Servicing Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Dechert, 30 Rockefeller Plaza, New York, NY
10112 at 9:00 a.m., New York time, on the Closing Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date (to the extent of
the standard, if any, set forth in each representation and warranty).
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information to be
disclosed in the Memorandum and the Prospectus Supplement.
(e) 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 and the Purchaser 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.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) The Underwriters shall not have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
(j) The Master Servicer and Principal Capital Management, LLC shall
have entered into a primary servicing agreement (such agreement, the "Primary
Servicing Agreement").
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles
of incorporation and by-laws.
(d) A certificate of good standing for the Seller from the Secretary
of State of Iowa dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Iowa law and has full power
as a limited liability company and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement (A) conflicts
with or results in a breach or violation of, or constitute a default
under, the organizational documents of the Seller, (B) to the knowledge of
such counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or by which it or any of its assets is bound or result in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract
or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally, (3)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) 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 from liabilities
under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Iowa and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche, certified public accountants,
dated the date hereof, to the effect that they have performed certain specified
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Memorandum and the
Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Bill of Sale in the form attached hereto as
Exhibit 4.
SECTION 8. [Reserved].
SECTION 9. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Morgan Stanley Dean
Witter Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:
[Pamela Sanderson DiDonato], with a copy to Morgan Stanley Dean Witter Capital I
Inc., 1585 Broadway, New York, New York 10036, Attention: General Counsel (or
such other address as may hereafter be furnished in writing by the Purchaser),
or (ii) if to the Seller, addressed to the Seller at Principal Life Insurance
Company, 711 High Street, Des Moines, Iowa 50392-0001, Attention: Patrick G.
Halter (or to such other address as the Seller may designate in writing with
copies to the attention of Karen A. Pearston, Esq.).
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that 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 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
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 11. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
SECTION 12. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12
hereof may be assigned to the Trustee as may be required to effect the purposes
of the Pooling and Servicing Agreement and, upon such assignment, the Trustee
shall succeed to the rights and obligations hereunder of the Purchaser. No owner
of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
SECTION 15. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
SECTION 16. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, 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
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
PRINCIPAL LIFE INSURANCE COMPANY
By:
--------------------------------------
Name:
Title
By:
--------------------------------------
Name:
Title
MORGAN STANLEY DEAN WITTER CAPITAL I INC.
By:
--------------------------------------
Name:
Title:
<PAGE>
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
See SCHEDULE I to the
Pooling and Servicing Agreement.
<PAGE>
Schedule A
<TABLE>
Deal # Loan Number Property Name Due Date
------ ----------- ------------- --------
<S> <C> <C> <C>
1 751380 Lighton Plaza Tower, I, & II 15
2 752172 Woodmen Retail 15
4 751728 Liberty Square Shopping Center 15
5 751649 1860-2159 Landings Drive 15
6 750714 3555 Monte Villa Parkway 10
7 750713 14520 NE 87TH Street 10
8 750712 26755 SW 95TH Avenue 10
9 750770 14500 NE 87TH Street 10
10 750711 14560 NE 87TH Street 10
11 750659 Sun Center Phase I 15
13 751550 461 Fifth Avenue 15
14 751362 Bird Ludlam Shopping Center 15
15 751323 11618 Mulberry Avenue 15
16 752169 2425 South Watney Way 15
17 751461 311-325 Gellert Boulevard 15
19 751808 Stop & Shop 15
22 751627 5560 Katella Avenue 15
23 752157 4600, 4650, & 4680 Olson Memorial Highway 15
24 751296 10900 Research Boulevard 15
25 751944 Stop & Shop 15
27 751357 Sherwin Williams 10
28 751450 12000 Biscayne Building 15
29 751585 6100 Gateway Drive & 10700 Valley View Street 15
30 752164 Don Julian 15
32 751835 ASC Building 15
34 751252 42701-42735 Christy Street 15
35 750756 Wheelersburg Lowes 15
36 750810 Burlington Lowes 15
37 751044 Lichtin Office 15
38 751216 Kroger Center 15
40 751172 Randall's Austin 15
41 751952 Hollybrook Plaza 15
42 751476 110-116,119-123,146-152,156-162,166-170 Keystone Drive 15
43 752026 8945 Dice Road 15
44 751011 Oglethorpe Crossing 15
45 751572 Eisenhower Plaza 15
47 750968 Harris Teeter 15
48 750819 Cobb Parkway 15
50 752272 16040 Stephens Street 15
56 751345 10116 NE 8th Street 15
59 751374 Winn Dixie & Video 15
60 750091 Publix @ Mt. Zion 15
61 399510 Blue Springs HyVee 15
62 751293 Bombay Co. Warehouse 15
63 752162 5452 Betsy Ross Drive 15
64 751639 Milstead Crossing Shopping Center 15
65 750726 Circuit City Stores 10
66 751385 2076-2098 Nickerson Boulevard 15
67 751022 2401 West Valley Highway Warehouse 10
68 750366 6149 S. Norcross Tucker Road 15
71 750362 Indian Creek Winn Dixie 5
72 751285 1805-1809 Lower Road 15
73 750962 Three Meadow Plaza 25
75 752064 Nashville Food Lion 15
77 751120 Colonial Plaza 25
79 751294 Sprint Spectrum Building 15
81 752030 Los Alalmitos Industrial 15
83 752158 575 Redwood 15
86 750870 Walgreens/Payless 15
87 751087 2009 Country Club Drive 15
88 751173 7117 Inwood 15
89 750159 Camfield Corners 5
90 751965 Shea Plaza Shopping Center 15
92 751873 Kennedy Business Park 15
93 750092 Home Depot Land 15
95 751045 Warehouse Cobb International Park 15
97 751456 700 Bradley Hill Road #3 15
98 751997 75 Lackawanna Avenue 15
99 750964 3325 Taylor Road 15
102 751438 675 County Road 15
</TABLE>
<PAGE>
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to Principal Loans)
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) an option
to purchase the Mortgaged Property for Mortgage Loan No. 751944, granted to the
largest tenant at the Mortgaged Property, for One Dollar, upon the expiration of
a 90 year period, an option to purchase the Mortgaged Property for Mortgage Loan
No. 752225, granted to the sole tenant at the Mortgaged Property, exercisable by
the tenant for an amount which may be less than the amount of the Mortgage, but
only in the event that the Mortgagor terminates the related lease (which cannot
be terminated without the lender's consent) following a casualty where the
amount of the damage is not covered by insurance (and Seller represents that, as
of the Closing Date, the related Mortgaged Property is covered by insurance) and
exceeds 5% of the replacement cost of the Mortgaged Property and an option to
purchase the Mortgaged Property for Mortgage Loan No. 751550 for $30 million,
granted to the ground tenant at the Mortgaged Property, exercisable by the
ground tenant, not more than eighteen (18) months prior to and not less than six
(6) months prior to the ground lease's expiration date of June 30, 2006; and (e)
other matters to which like properties are commonly subject, none of which
matters referred to in clauses (b), (c), (d) or (e) materially interferes with
the security intended to be provided by such Mortgage, the marketability or
current use of the Mortgaged Property or the current ability of the Mortgaged
Property to generate operating income sufficient to service the Mortgage Loan
debt (the foregoing items (a) through (e) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Mortgage.
Such Mortgage, together with any separate security agreements, chattel mortgages
or equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
connection with the origination of those Mortgage Loans listed on Schedule C
attached hereto, a Uniform Commercial Code financing statement has been filed
and/or recorded in all places necessary to perfect a valid security interest in
such personal property, to the extent a security interest may be so created
therein, and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property. With
respect to those Mortgage Loans not listed on Schedule C, the failure to have
received and filed Uniform Commercial Code financing statements prior to the
Closing Date will not have a material adverse effect on the value of the
Mortgaged Properties. With respect to those Mortgage Loans listed on Schedule C,
the failure to have filed or recorded a Uniform Commercial Code continuation
statement prior to the Closing Date will not have a material adverse effect on
the value of the related Mortgaged Properties. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and 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.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or (except for Permitted Encumbrances)
subordinated in whole or in material part, and the related Mortgaged Property
has not been released from the lien of such Mortgage, in whole or in material
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation (except for Permitted Encumbrances), subordination,
rescission or release, except for any partial reconveyances of real property
that are included in the related Mortgage File. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. A property inspection report
was prepared in connection with the origination of each Mortgage Loan. With
respect to Mortgage Loan Nos. 752064, 752157, 752164, 752172, 752225, 752226,
752227, 752272, 752370 and 752414, other than as disclosed in the related
report, the related Mortgaged Property is, to the Seller's knowledge, (a) free
and clear of any damage that would materially and adversely affect its value as
security for the Mortgage Loan; (b) in good repair and condition so as not to
materially and adversely affect its value as security for the related Mortgage
Loan; and (c) all building systems contained therein are in good working order
so as not to materially and adversely affect its value as security for the
related Mortgage Loan.
With respect to the remaining Mortgage Loans not specifically listed
above, the related Mortgaged Property is (a) free and clear of any damage that
would materially and adversely affect its value as security for the Mortgage
Loan; (b) in good repair and condition so as not to materially and adversely
affect its value as security for the related Mortgage Loan; and (c) all building
systems contained therein are in good working order so as not to materially and
adversely affect its value as security for the related Mortgage Loan. The Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property.
The Seller has received no notice of the commencement of any
proceeding for the condemnation of all or any material portion of any Mortgaged
Property. To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of the
date of the origination of each Mortgage Loan, all of the material improvements
on the related Mortgaged Property that were considered in determining the value
of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy insures
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein (or an escrow letter or
a marked up title insurance commitment on which the required premium has been
paid exists which evidences that such Title Policy will be issued). 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, no material
claims have been made thereunder and no claims have been paid thereunder. No
mortgagee under the related Mortgage has done, by act or omission, anything that
would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. To the Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions. (a) An environmental site assessment
("Environmental Report") was performed with respect to each Mortgaged Property
in connection with the origination of each Mortgage Loan. With respect to the
Mortgage Loan Nos. 752064 (assessment dated May 21, 1999); 752157 (assessment
dated October 26, 1999); 752164 (assessment dated February 22, 1999); 752172
(assessment dated April 8, 1999); 752225 (assessment dated April 12, 1999);
752226 (assessment dated April 29, 1999); 752227 (assessment dated March 31,
1999); 752272 (assessment dated April 26, 1999); 752370 (assessment dated
September 13, 1999); and 752414 (assessment dated October 14, 1999); other than
as disclosed in the related Environmental Report therefor, to the Seller's
knowledge, (X) no Hazardous Material is present on such Mortgaged Property, such
that (1) the value, use or operations of such Mortgaged Property is materially
and adversely affected, or (2) under applicable federal, state or local law, (a)
such Hazardous Material could be required to be eliminated, remediated or
otherwise responded to at a cost or manner materially and adversely affecting
the value, use or operations of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or transferred or (b) the
presence of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged Property, or the
holders of a security interest therein, to liability for the cost of
eliminating, remediating or otherwise responding to such Hazardous Material or
the hazard created thereby at a cost or manner materially and adversely
affecting the value, use or operations of the Mortgaged Property, and (Y) such
Mortgaged Property is in material compliance with all applicable federal, state
and local laws and regulations pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws or regulations does not
have a material adverse effect on the value, use or operations of such Mortgaged
Property and neither Seller nor, to the Seller's knowledge, the related
Mortgagor or any current tenant thereon, has received any notice of any
violation or potential violation of any such law or regulation. With respect to
any condition disclosed in an Environmental Report, which condition constituted
a violation of applicable laws or regulations or would materially and adversely
affect the value, use or operations of the related Mortgaged Property if not
remedied, such condition has either been satisfactorily remedied or the
applicable loan documents contain provisions which address such condition to the
satisfaction of the Seller and adequate funding or resources are available to
remedy or otherwise respond to such condition.
(b) With respect to the remaining Mortgage Loans, (X) no Hazardous
Material is present on the related Mortgaged Property, such that (1) the value,
use or operations of such Mortgaged Property is materially and adversely
affected, or (2) under applicable federal, state or local law and regulations,
(a) such Hazardous Material could be required to be eliminated, remediated or
otherwise responded to at a cost or manner materially and adversely affecting
the value, use or operations of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or transferred or (b) the
presence of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged Property, or the
holders of a security interest therein, to liability for the cost of eliminating
such Hazardous Material or the hazard created thereby at a cost or manner
materially and adversely affecting the value, use or operations of the Mortgaged
Property, and (Y) such Mortgaged Property is in material compliance with all
applicable federal, state and local laws and regulations pertaining to Hazardous
Material or environmental hazards, any noncompliance with such laws does not
have a material adverse effect on the value, use or operations of such Mortgaged
Property and neither Seller nor, to the Seller's knowledge, the related
Mortgagor or any current tenant thereon, has received any notice of any
violation or potential violation of any such law or regulation. With respect to
any condition disclosed in an Environmental Report, which condition constituted
a violation of applicable laws or regulations or would materially and adversely
affect the value, use or operations of the related Mortgaged Property if not
remedied, such condition has either been satisfactorily remedied or the
applicable loan documents contain provisions which address such condition to the
satisfaction of the Seller, and adequate funding or resources are available to
remedy or otherwise respond to such condition.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related or
similar materials, and any other substance, material or waste as may be defined
as a hazardous or toxic substance by an federal, state or local environmental
law, ordinance, rule, regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. sections 9601 et. seq.), the Hazardous Materials
Transportation Act as amended (42 U.S.C. sections 6901 et seq.), the Federal
Water Pollution Control Act as amended (33 U.S.C. sections 1251 et seq.), the
Clean Air Act (42 U.S.C. sections 1251 et seq.), and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures a Mortgage Loan and that was executed by or
on behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency), enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements.
14. Insurance. Except for certain Mortgage Loans which permit the
related Mortgagor or a tenant to self insure (in which case, Seller represents
that, in the event of a casualty which would be covered by a risk under the
insurance coverages specified below, the absence of the related insurance
policies will not result in the failure of: (i) the holder of such Mortgage Loan
to receive an amount equal to the proceeds that would have been made available
to such Mortgage Loan holder by a third party insurer, if such insurance
policies had been in force, or (ii) alternatively, the related Mortgaged
Property to be restored), each Mortgaged Property is, and is required pursuant
to the related Mortgage, to be insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by reason
of fire, lightning, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; (b) except for those Mortgage
Loans listed on the attached list of Seller's Exceptions to Representations and
Warranties, a business interruption or rental loss insurance policy, in an
amount at least equal to twelve months of operations of the Mortgaged Property
and for those Mortgage Loans listed on the attached list of Seller's Exceptions
to Representations and Warranties, the inadequacy or lack of business
interruption or rental loss insurance will not materially and adversely affect
the ability of the related Mortgagor to pay in full the principal and interest
due on the related Mortgage Loan in a timely manner during the twelve (12) month
period immediately following an event that would otherwise trigger coverage
under a business interruption or rental loss insurance policy; (c) a flood
insurance policy (if any portion of buildings or other structures (excluding
parking) on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency ("FEMA") as a special flood hazard area
(which "special flood hazard area" does not include areas designated by FEMA as
Zones B, C or X)). With respect to each Mortgaged Property either (a) such
Mortgaged Property is, and is required pursuant to the related Mortgage to be,
insured by a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence or (b) if the related Mortgage does not require
the minimum amount of such insurance to be $1 million per occurrence or the
related Mortgage permits self insurance for the risks that would otherwise by
covered generally by a comprehensive general liability insurance policy, then
the inadequacy or lack of such insurance will not materially and adversely
affect the ability of such Mortgagor to pay in full the principal and interest
on the related Mortgage Loan in a timely manner. Such insurance policies contain
a standard mortgagee clause that names the mortgagee as an additional insured
and requires prior notice to the holder of the Mortgage of termination or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage obligates the
related Mortgagor to maintain all such insurance and, upon such Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement therefor
from such Mortgagor. Each Mortgage provides that casualty insurance proceeds
will be applied either to the restoration or repair of the related Mortgaged
Property or to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
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 or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Except as set forth in clauses (i) and (ii) of
this paragraph 17, each Mortgaged Property consists of a fee simple estate in
real estate, and (i) where the Mortgagor is a lessee under a ground lease of the
Mortgaged Property (a "Ground Lease"), the related Mortgage Loan is secured by a
Mortgage encumbering both the Mortgagor's interest in the Ground Lease and the
ground landlord's fee simple interest in the Mortgaged Property, and each such
Mortgage constitutes a first priority lien on both the fee simple and leasehold
estates, subject only to the applicable Permitted Encumbrances (which Permitted
Encumbrances do not include any loan secured by a lien encumbering the fee
simple or leasehold estates with priority over the related Mortgage Loan); and
(ii) Mortgage Loan No. 751216 is secured by a first priority lien (subject to
the Permitted Encumbrances) encumbering (a) a fee simple estate of real property
constituting a portion of the Mortgaged Property and (b) a leasehold interest
created by a Ground Lease of 82 parking spaces located on land adjacent to such
real property and the termination of the Ground Lease will not materially and
adversely affect: (1) the ability of the Mortgagor to pay in full the principal
and interest on the Mortgage Loan in a timely manner or (2) the use of the
Mortgaged Property for the use currently being made thereof, the operation of
the Mortgaged Property as currently being operated or the value of the Mortgaged
Property.
18. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 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 that served as the
only real property 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)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. As of the applicable Mortgage Loan
origination date, and to the Seller's knowledge as of the Closing Date, each
Mortgaged Property is free and clear of any and all mechanics' and materialmen's
liens that are prior or equal to the lien of the related Mortgage, and no rights
are outstanding that under law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage except, in each case, for
liens insured against by the Title Policy referred to herein, or, if any such
liens existing as of the Closing Date are not insured against by the Title
Policy referred to herein, such liens will not have a material adverse effect on
the value of the related Mortgaged Property.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-
collateralized or cross-defaulted with any loan other than one or more other
Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
valuation for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan. The Mortgage for Mortgage Loan No. 751249 requires the
mortgagee to grant a release of a portion of the related Mortgaged Property upon
(a) the satisfaction of certain legal and underwriting requirements and/or (b)
the payment of a release price and prepayment consideration in connection
therewith. Except as described in the first sentence hereof, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. Sections 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
27. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs 3, 7, 12,
14, 15, 16 and 17 of this Exhibit 2.
28. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property (a) in connection with the origination of the related
Mortgage Loan and (b) during the calendar year 2000.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal or internal or external market study performed at origination.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by the
Seller have been in all material respects legal, proper and prudent and have met
customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan, and to Seller's
knowledge, as of the Closing Date, based on servicing procedures customarily
performed in the Seller's servicing of the Mortgage Loans during the period in
which Seller owned each such Mortgage Loan, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgage Property
as it was then operated.
34. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
35. Valid Assignment. The assignment of the related Mortgage in
favor of the Trustee constitutes a legal, valid and binding assignment by the
Seller.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, is transferred, sold or encumbered by a junior mortgage or deed of
trust; provided, however, that certain Mortgage Loans provide a mechanism for
the assumption of the loan by a third party upon the Mortgagor's satisfaction of
certain conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Mortgagor or constituent entities of the Mortgagor
to a third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
37. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the related Mortgagor and non-recourse guarantors, if any, except
that either (i) such provision does not apply in the case of fraud by the
Mortgagor or (ii) such documents provide that the Mortgagor shall be liable to
the holder of the Mortgage Loan for losses incurred as a result of fraud by the
Mortgagor.
38. Underwriting Policies. Each Mortgage Loan was either originated
by the Seller or an affiliate thereof, and each such origination of a Mortgage
Loan complied with the Seller's underwriting policies in effect as of such
Mortgage Loan's origination date.
39. Qualification To Do Business. To the extent required under
applicable law, each holder of the note was authorized to transact and do
business in the jurisdiction where the Mortgaged Property was located while each
was holder.
40. Assignability of Mortgage Loans. The Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Depositor to assign,
transfer and convey the Mortgage Note or Mortgage to any other person or entity.
41. REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage"
as such term is defined in Section 860G(a)(3) of the Code.
<PAGE>
Schedule B
Seller's Exceptions to the Representations and Warranties
1. None
2. None
3. None
4. None
5. None
6. None
7. None
8. None
9. None
10. None
11. None
12. None
13. None
14. The Lender does not have evidence that Loan Nos. 751322 (Deal No. 3);
751585 (Deal No. 29); 751044 (Deal No. 37); 751216 (Deal No. 38); 750160
(Deal No. 58); 751385 (Deal No. 66); 750682 (Deal No. 94); 750756 (Deal
No. 35); 750092 (Deal No. 93); 750148 (Deal No. 85); 751173 (Deal No. 88);
and 750726 (Deal No. 65) have twelve months rental insurance.
15. None
16. None
17. None
18. None
19. None
20. None
21. None
22. None
23. None
24. None
25. None
26. None
27. None
28. None
29. None
30. None
31. None
32. None
33. None
34. None
35. None
36. None
37. None
<PAGE>
Schedule C
Loans with UCC's
--------------------------------------------------------------------------------
LOAN NUMBERS DEAL NUMBERS
--------------------------------------------------------------------------------
399442 21
--------------------------------------------------------------------------------
750160 58
--------------------------------------------------------------------------------
750164 53
--------------------------------------------------------------------------------
750366 68
--------------------------------------------------------------------------------
750682 94
--------------------------------------------------------------------------------
750711 10
--------------------------------------------------------------------------------
750712 8
--------------------------------------------------------------------------------
750713 7
--------------------------------------------------------------------------------
750726 65
--------------------------------------------------------------------------------
750756 35
--------------------------------------------------------------------------------
750770 9
--------------------------------------------------------------------------------
750810 36
--------------------------------------------------------------------------------
750819 48
--------------------------------------------------------------------------------
750962 73
--------------------------------------------------------------------------------
751044 37
--------------------------------------------------------------------------------
751045 95
--------------------------------------------------------------------------------
751172 40
--------------------------------------------------------------------------------
751173 88
--------------------------------------------------------------------------------
751285 72
--------------------------------------------------------------------------------
751296 24
--------------------------------------------------------------------------------
751322 3
--------------------------------------------------------------------------------
751323 15
--------------------------------------------------------------------------------
751409 69
--------------------------------------------------------------------------------
751550 13
--------------------------------------------------------------------------------
751639 64
--------------------------------------------------------------------------------
751649 5
--------------------------------------------------------------------------------
751728 4
--------------------------------------------------------------------------------
751808 19
--------------------------------------------------------------------------------
751835 32
--------------------------------------------------------------------------------
752157 23
--------------------------------------------------------------------------------
<PAGE>
EXHIBIT 3
PRICING FORMULATION
Purchase Price $602,071,187.88
<PAGE>
EXHIBIT 4
BILL OF SALE
1. PARTIES. The parties to this Bill of Sale are the following:
Seller: Principal Life Insurance Company
Purchaser: Morgan Stanley Dean Witter Capital I Inc.
2. SALE. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of September [__], 2000 (the
"Mortgage Loan Purchase Agreement"), between the Seller and the Purchaser and
all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described
in clauses (a) and (b) above.
3. PURCHASE PRICE. The amount and other consideration set forth on
Exhibit 4 to the Mortgage Loan Purchase Agreement.
4. DEFINITIONS. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Bill
of Sale to be duly executed and delivered on this __ day of September, 2000.
SELLER: PRINCIPAL LIFE INSURANCE COMPANY
By:
--------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
PURCHASER: MORGAN STANLEY DEAN WITTER CAPITAL I INC.
By:
--------------------------------------
Name:
Title:
<PAGE>
EXHIBIT L
FORM OF INSPECTION REPORT
See Exhibit B-3 to the Primary Servicing Agreement
<PAGE>
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
Substantially Similar to the Information
Repeated in the Form of Statement to
Certificateholders in the
Prospectus Supplement
<PAGE>
EXHIBIT N
FORM OF OPERATING STATEMENT ANALYSIS REPORT
<TABLE>
EXHIBIT N
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT (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 UNDERWRITINMM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------------- -------- -------- --------
<S> <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>
========================================================================================================================
(prcdng yr
INCOME: (prcdng yr to 2nd
Number of Mos. Covered to base) prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD (2) YYY-U/W YYYY-YYYY
Statement BASE LINE (fm NOI Adj Sheet) AS OF / /98 VARIANCE
Classification (yr)
Gross Potential Rent (3)
LESS: VACANCY/COLLECTION
LOSS
OR
Base Rent (3)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
(2) Servicer will not be expected to "normalize" these ytd/ttm numbers.
(3) Use either Gross Potential (with Vacancy/Collection Loss) or Base Rents; use negative $amt for
Vacancy/Collection Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Capital Expenditures
Extraordinary Capital
Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e., operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential history. Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report. Year-over-year variances (either higher or lower) must
be explained and noted for the following: 10% DSCR CHANGE, 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
<FN>
* 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.
</FN>
</TABLE>
<PAGE>
##
EXHIBIT O
FORM OF SPECIAL SERVICER MONTHLY REPORT
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN
STATUS REPORT
AS OF _______________
(LOAN LEVEL REPORT)
<CAPTION>
Operating Information Reflected As NOI _____ or NCF
----------------------------------------------------------------------------------------------------------------------------
S62
S4 S55 S61 S57 S58 OR S63 L8 L7 L37 L39 L38
----------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
----------------------------------------------------------------------------------------------------------------------------
PAID ENDING TOTAL P&I OTHER EXPENSE TOTAL T & I
PROSPECTUS PROPERTY PROPERTY SQ FT OR THRU SCHEDULED ADVANCES ADVANCE ADVANCES
LOAN ID NAME TYPE CITY STATE UNITS DATE LOAN BALANCE OUTSTANDING OUTSTANDING OUTSTANDING
----------------------------------------------------------------------------------------------------------------------------
<S> <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
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
<FN>
---------------
*Workout Strategy 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
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF _______________
(LOAN LEVEL REPORT)
(continued)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
L54 or L56 or
L58 or L68/L92 L70/L93
S4 L25 L10 L11 L73 or L98 or L97 L74 L75
------------------------------------------------------------------------------------------------------------------------------
(e) =
a+b+c+d (f) (.90*f)-e
------------------------------------------------------------------------------------------------------------------------------
APPRAISAL LOSS USING
CURRENT LTM BPO OR 90% APPR.
PROSPECTUS TOTAL CURRENT INTEREST MATURITY NOI/NCF LTM LTM DSCR VALUATION INTERNAL OR
LOAN ID EXPOSURE MONTHLY P&I RATE DATE DATE NOI/NCF (NOI/NCF) DATE VALUE** BPO (F)
------------------------------------------------------------------------------------------------------------------------------
<S> <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
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
<FN>
---------------
**BPO - Broker opinion
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF _______________
(LOAN LEVEL REPORT)
(continued)
<CAPTION>
Operating Information Reflected As NOI _____ or NCF
-------------
S4 L99 L77 L79 L76
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
DATE ASSET
EXPECTED TO
TOTAL APPRAISAL BE RESOLVED
PROSPECTUS REDUCTION TRANSFER OR WORKOUT
LOAN ID REALIZED DATE FORECLOSED STRATEGY* COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <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
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
<FN>
---------------
*Workout Strategy 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
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
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:
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF _______________
(LOAN LEVEL REPORT)
(continued)
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------------
S4 L37 L39+L38 L47
--------------------------------------------------------------------------------------------------------------------------------
(i)=d-
(f) (g) (h) (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
PROSPECTUS ADVANCE ADVANCE FEES NET REALIZED PASSED MINOR ADJ PASSED WITH SCHEDULED
LOAN ID OUTSTANDING OUTSTANDING EXPENSE PROCEEDS LOSS THRU TO TRUST THRU ADJUSTMENT 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:
-----------------------------------------------------------------------------------------------------------------------
<FN>
----------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer.
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF ____________________
(LOAN LEVEL REPORT)
------------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 L49 L48 L7* L7* L50* L50* L25*
------------------------------------------------------------------------------------------------------------------------------------
BALANCE
EXTENSION WHEN #
MOD/ PER SENT TO BALANCE AT THE MNTHS
PROSPECTUS EXTENSION DOCS OR EFFECTIVE DATE OF SPECIAL EFFECTIVE DATE OF OLD FOR RATE NEW OLD
ID CITY STATE FLAG SERVICER MODIFICATION SERVICER MODIFICATION RATE CHANGE RATE P&I
------------------------------------------------------------------------------------------------------------------------------------
<S> <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:
---------------
<FN>
* 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.
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF ____________________
(LOAN LEVEL REPORT)
(continued)
--------------------------------------------------------------------------------------
S4 L25* L11* L11* L47
--------------------------------------------------------------------------------------
(2) EST.
FUTURE
INTEREST
TOTAL # (1) LOSS TO
MTHS FOR REALIZED TRUST $
PROSPECTUS NEW OLD NEW CHANGE LOSS TO (RATE
ID P&I MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
--------------------------------------------------------------------------------------
<S> <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:
----------
<FN>
* 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.
</FN>
(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
Special Servicer Remittance Report
Mortgage Pass Through Certificates Series________________
Determination Date __/__/____
Due Period __/__/____ to __/__/____
Calculation of Special Servicer Servicing Fees:
------------------------------------------------------------------------------------------------------------------------------------
Stated Principal Balance Special Servicer Date Returned Net Liquidation
Borrower as of the beginning Loan Transfer to Master Proceeds Liquidation
Loan # Name of the due period Date Servicer Fixed Pmt Fee
------------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Mortgage Loans and REO Loans:
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Total $
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
EXHIBIT O
(continued)
Special Servicer Remittance Report
Mortgage Pass Through Certificates Series________________
Determination Date __/__/____
Due Period __/__/____ to __/__/____
Calculation of Special Servicer Servicing Fees:
<CAPTION>
--------------------------------------------------------------------------------------------------------
Assumption Administration Modification Forbearance
Loan # Fees Fees Fees Fees Fees
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Total $
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Special Servicing Fee:
Mortgage Principal Balance as of __/__/____
Special Servicing Fee Rate (.25%)/12 _______________
Special Servicing Fee _______________
Additional Fees Collected:
Specially Serviced Loans: 100% of Fee
Assumption Fees
Extension Fees
Modification Fees
Late Fees
Forbearance Fees
Non Specially Serviced Loans: 50% of Fee
Assumption Fees
Modification Fees
Liquidation Fee:
1.00% x Net Proceeds x Net Proceeds
---------------------------------------
Principal + Int
Total Additional Fees _______________
Total Special Servicing Compensation Due: _______________
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
as of ____________________
(Property Level Report)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
P16 OR
P4 P7 P13 P9 P10 P17 L8 P21 L37 L39 L38
------------------------------------------------------------------------------------------------------------------------------
(e) =
(a) (b) (c) (d) 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>
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.
</TABLE>
<PAGE>
<TABLE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
as of ____________________
(Property Level Report)
(continued)
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
P58 OR
P53 OR P72/P79
P4 L25 L11 P74 OR P83 P24 P25 L35 L77
-------------------------------------------------------------------------------------------------------------------------------
(h) =
(f) (g) (.90*g) - e
-------------------------------------------------------------------------------------------------------------------------------
APPRAISAL
BPO OR APPRAISAL LOSS USING TOTAL
CURRENT LTM INTERNAL BPO OR 90% APPR. APPRAISAL
PROPERTY MONTHLY MATURITY NOE/NCF LTM DSCR VALUATION VALUE INTERNAL OR REDUCTION TRANSFER
ID P&I DATE DATE (NOI/NCF) DATE SOURCE (1) VALUE BPO (f) REALIZED DATE
-------- ------- -------- ------- --------- --------- ---------- --------- ---------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <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.
<FN>
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
</FN>
</TABLE>
<PAGE>
EXHIBIT O
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
as of ____________________
(Property Level Report)
(continued)
--------------------------------------------
P4 P28 P26
--------------------------------------------
--------------------------------------------
DATE
ASSET
REO EXPECTED
PROPERTY ACQUISITION TO BE
ID DATE RESOLVED COMMENTS
-------- ----------- -------- --------
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.
<PAGE>
EXHIBIT P
Reserved
<PAGE>
EXHIBIT Q
Form of Mortgage Loan Information
Substantially Similar to the Information
Repeated in Appendix II to the
Prospectus Supplement
<PAGE>
EXHIBIT S-1
Form of Power of Attorney to Master Servicer
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, N.A.
555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Attention: Commercial Mortgage Pass-
Through Series 2000-PRIN
Space above this line for Recorder's use
------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Morgan Stanley Dean Witter Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-PRIN ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of September 1, 2000
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer under the
Pooling and Servicing Agreement ("Wells Fargo Bank"), 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 Wells Fargo Bank to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Wells Fargo Bank of its duties as Master Servicer under the Pooling and
Servicing Agreement, giving and granting unto Wells Fargo Bank 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 Wells Fargo Bank shall lawfully do or cause to be done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of September, 2000.
LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Morgan Stanley Dean Witter
Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series
2000-PRIN
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, ___________________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared __________________________________________________________
Name(s) of Document Signer(s)
______________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT S-2
Form of Power of Attorney to Special Servicer
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, N.A.
555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Attention: Commercial Mortgage Pass-
Through Series 2000-PRIN
Space above this line for Recorder's use
------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Morgan Stanley Dean Witter Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-PRIN ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of September 1, 2000
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint PRINCIPAL CAPITAL MANAGEMENT, LLC, as Special Servicer under the Pooling
and Servicing Agreement ("Principal"), 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 Principal to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by Principal
of its duties as Special Servicer under the Pooling and Servicing Agreement,
giving and granting unto Principal 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 Principal shall
lawfully do or cause to be done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of September, 2000.
LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Morgan Stanley Dean Witter
Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series
2000-PRIN
By:
--------------------------------------
Name:
-------------------------------------
Title:
-----------------------------------
<PAGE>
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, ___________________________________
Date Name and Title of Officer (i.e.,
Your Name, Notary Public)
personally appeared __________________________________________________________
Name(s) of Document Signer(s)
______________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE>
EXHIBIT T
Form of Debt Service Coverage Ratio Procedures
PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO
"Debt Service Coverage Ratios" generally means the ratio of
"Underwritable Cash Flow" estimated to be produced by the related Mortgaged
Property to the annualized amount of debt service payable under that Mortgage
Loan. "Underwritable Cash Flow" in each case is an estimate of stabilized cash
flow available for debt service. In general, it is the estimated stabilized
revenue derived from the use and operation of a Mortgaged Property (consisting
primarily of rental income) less the sum of (a) estimated stabilized operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
management fees and advertising), (b) fixed expenses (such as insurance, real
estate taxes and, if applicable, ground lease payments) and (c) capital
expenditures and reserves for capital expenditures, including tenant improvement
costs and leasing commissions. Underwritable Cash Flow generally does not
reflect interest expenses and non-cash items such as depreciation and
amortization. In determining Underwritable Cash Flow for a Mortgaged Property,
the Master Servicer may rely on rent rolls and other generally unaudited
financial information provided by the respective borrowers and may estimate cash
flow taking into account historical financial statements, material changes in
the operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
<PAGE>
EXHIBIT U
FORM OF
ASSIGNMENT AND ASSUMPTION SUBMISSION
TO SPECIAL SERVICER
SEE APPENDIX 1 TO PRIMARY SERVICING AGREEMENT
<PAGE>
EXHIBIT V
FORM OF ADDITIONAL LIEN, MONETARY
ENCUMBRANCE AND MEZZANINE
FINANCING SUBMISSION PACKAGE
TO THE SPECIAL SERVICER
See Appendix 2 to Primary Servicing Agreement
<PAGE>
<TABLE>
EXHIBIT W
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _______________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI____ or NCF______
<CAPTION>
--------------------------------------------------------------------------------------------------------------------
P47 OR P48 OR
P4 P9 P10 P52 P21 L8 P57 P44 P51 P45 P76 P77
--------------------------------------------------------------------------------------------------------------------
ORIGINAL UNDERWRITING
INFORMATION
--------------------------------------------------------------------------------------------------------------------
BASE YEAR NORMALIZED
--------------------------------------------------------------------------------------------------------------------
LAST CURRENT ALLOCATED
PROPERTY ALLOCATED PAID ANNUAL FINANCIAL
PROPERTY INSPECTION LOAN THRU DEBT INFO AS OF % TOTAL $ (1)
ID CITY STATE DATE AMOUNT DATE SERVICE DATE OCC REVENUE NOI/NCF DSCR
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yyyymmdd yyyymmdd
--------------------------------------------------------------------------------------------------------------------
List all properties currently in deal with or without information largest to smallest loan
This report should reflect the information provided in the CMSA Property File and CMSA Loan Periodic Update File.
--------------------------------------------------------------------------------------------------------------------
Total: $ $ ** WA $ $ WA
--------------------------------------------------------------------------------------------------------------------
---------------
<FN>
(1) DSCR should match to Operating Statement Analysis Report and is normally calculated using NOI or NCF / Debt Service times the
allocated loan percentage.
** Weighted Averages should be computed and reflected if the data is relevant and applicable.
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT W
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _______________
(PROPERTY LEVEL REPORT)
(continued)
Operating Information Reflected As NOI____ or NCF______
<CAPTION>
-----------------------------------------------------------------------------------------------------------
P63 OR P65 OR P56 OR P58 OR
P4 P60 P66 P61 P80 P81 P53 P59 P54 P78 P79
-----------------------------------------------------------------------------------------------------------
2ND PRECEDING ANNUAL OPERATING PRECEDING ANNUAL OPERATING
INFORMATION INFORMATION
-----------------------------------------------------------------------------------------------------------
AS OF NORMALIZED AS OF NORMALIZED
-----------------------------------------------------------------------------------------------------------
FINANCIAL FINANCIAL
PROPERTY INFO AS OF % TOTAL $ (1) INFO AS OF % TOTAL $ (1)
ID DATE OCC REVENUE NOI/NCF DSCR DATE OCC REVENUE NOI/NCF DSCR
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yyyymmdd yyyymmdd
-----------------------------------------------------------------------------------------------------------
List all properties currently in deal with or without information largest to smallest loan
This report should reflect the information provided in the CMSA Property File and CMSA Loan Periodic Update File.
-----------------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ $ WA
-----------------------------------------------------------------------------------------------------------
---------------
<FN>
(1) DSCR should match to Operating Statement Analysis Report and is normally calculated using NOI or NCF / Debt Service times the
allocated loan percentage.
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT W
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _______________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI____ or NCF______
<CAPTION>
----------------------------------------------------------------------------------------------------
P70 OR P72 OR
P4 P73 P74 P30 P29 P68 P82 P83 (2)
----------------------------------------------------------------------------------------------------
MOST RECENT FINANCIAL
INFORMATION NET CHANGE
----------------------------------------------------------------------------------------------------
*NORMALIZED OR ACTUAL PRECEDING & BASIS
----------------------------------------------------------------------------------------------------
PROPERTY FS START FS END OCC AS OF % TOTAL $ (1) % % TOTAL (1)
ID DATE DATE DATE OCC REVENUE NOI/NCF DSCR OCC REVENUE DSCR
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yyyymmdd yyyymmdd yyyymmdd
----------------------------------------------------------------------------------------------------
List all properties currently in deal with or without information largest to smallest loan
This report should reflect the information provided in the CMSA Property File and CMSA Loan Periodic
Update File.
----------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ WA
----------------------------------------------------------------------------------------------------
---------------
<FN>
(1) DSCR should match to Operating Statement Analysis Report and is normally calculated using NOI or NCF / Debt Service times the
allocated loan percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant and applicable.
</FN>
</TABLE>
<PAGE>
<PAGE>
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)
<PAGE>
<TABLE>
Commercial Mortgage Securities Association
CMSA "Loan Setup" File
(Data Record Layout)
Cross Referenced as "S"
<CAPTION>
Field Format
Field Name Number Type Example Description/Comments
----------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment 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>
Commercial Mortgage Securities Association
CMSA "Loan Setup" File
(Data Record Layout)
Cross Referenced as "S"
Rounding Code
Legend
-------------
1 Unrounded
2 Nearest Percentage Increment
3 Up To Nearest Percentage Increment
4 Down To Nearest Percentage Increment
Property Types Code
Legend
-------------------
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
ARM Index Code
Legend
--------------
A 11 FHLB COFI (1 Month)
B 11 FHLB COFI (6 Month)
C 1 Year CMT Weekly Average Treasury
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
Payment Type Code
Legend
-----------------
1 Fully Amortizing
2 Amortizing Balloon
3 Interest Only/Balloon
4 Interest Only/Amortizing
5 Interest Only/Amortizing/Balloon
6 Principal Only
7 Hyper-Amortization
9 Other
DSCR Indicator
Legend
--------------
P Partial - Not all properties received financials, servicer to leave empty
A Average - Not all properties received financials, servicer allocates Debt
Service only to properties where financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer allocates 100%
of Debt Service to all properties where financials are received.
N None Collected - no financials were received
C Consolidated-All properties reported on 1 "rolled up" financial from the
borrower
<PAGE>
EXHIBIT W
<TABLE>
CMSA Investor Reporting Package
Servicer Watch List
as of __________
(Loan Level 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 Loan Thru Maturity DSCR DSCR
Loan ID Property Name Type City State Balance Date Date NOI/NCF NOI/NCF Comment/Action 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.
</TABLE>
Total: $
<PAGE>
EXHIBIT W
<TABLE>
CMSA Investor Reporting Package
DELINQUENT LOAN STATUS REPORT
as of __________
(Loan Level Report)
<CAPTION>
Operating Information Reflected As NOI______ or NCF________
----------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or S63 L8 L7 L37 L39 L38
---------- -------- -------- ---- ----- ---------- ---- --------- ----------- ----------- ----------- -----------
(a) (b) (c) (d) (e)=a+b+c+d
---------- -------- -------- ---- ----- ---------- ---- --------- ----------- ----------- ----------- -----------
Ending Other
Loan Paid Scheduled Total P&I Expense Total T&I
Prospectus Property Property Sq Ft or Thru Loan Advances Advance Advances Total
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
CMSA Investor Reporting Package
DELINQUENT LOAN STATUS REPORT
as of __________
(Loan Level Report)
continued
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------
L54 or L56 or
L68/L92 L70/L93
S4 L25 L10 L11 L58 or L73 or L96 or L97 L74 L75 L35 L77
---------- ------- -------- -------- ---------- ------- --------- --------- --------- --------- --------- --------
(f) (.90*f)-e
---------- ------- -------- -------- ---------- ------- --------- --------- --------- --------- --------- --------
Loss
Appraisal using Total
Loan Current Current LTM LTM BPO or 90% Appraisal
Prospectus Monthly Interest Maturity NOI/NCF LTM DSCR Valuation Internal Appr. or Reduction Transfer
ID P&I Rate Date Date NOI/NCF (NOI/NCF) Date Value** BPO (f) Realized Date
---------- ------- -------- -------- ---------- ------- --------- --------- --------- --------- --------- --------
<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>
-------------------------------------------
S4 L79 L76
---------- ----------- -------- --------
---------- ----------- -------- --------
Date Asset
Expected to
Loan be Resolved
Prospectus or Workout
ID 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
<FN>
FCL=Foreclosure
LTM=Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
*Workout Strategy 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
</FN>
</TABLE>
<PAGE>
EXHIBIT W
<TABLE>
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 L37
---------- -------- -------- ---- ----- ----------- --------- ----------- ----- --------- --------- -----------
(c)=b/a (a) (b) (d) (e) (f)
---------- -------- -------- ---- ----- ----------- --------- ----------- ----- --------- --------- -----------
Latest
% Appraisal
Received or Effective Net Amt Ending Total P&I
Prospectus Property Property from Brokers Date of Sales Received Scheduled Advance
Loan ID Name Type City State Liquidation Opinion Liquidation Price from Sale Balance Outstanding
---------- -------- -------- ---- ----- ----------- --------- ----------- ----- --------- --------- -----------
<S> <C> <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:
--------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer.
CMSA Investor Reporting Package
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF or NOTE SALE)
as of __________
(Loan Level Report)
continued
<CAPTION>
S4 L39+L38 L47
---------- ----------- --------- ------------- -------- ------ ------ ------- ---------- ---------
(g) (h) (i)=d-(f+g+h) (k) (m) (n)=k+m (o)=n/e
---------- ----------- --------- ------------- -------- ------ ------ ------- ---------- ---------
Total T&I Date of
and Other Date Minor
Expense Servicing Loss Minor Adj Total Loss Loss % of
Prospectus Advance Fees Realized Passed Adj to Passed with Scheduled
Loan ID Outstanding Expense Net Proceeds Loss thru 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.
-----------------------------------------------------------------------------------------------------------
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>
CMSA Investor Reporting Package
HISTORICAL LOAN MODIFICATION REPORT
as of __________
(Loan Level Report)
<CAPTION>
---------- ---- ----- --------- --------- ------------ -------- ----------------- ---- -------- ---- ------- ----
S4 S57 S58 S49 L48 L7* L7* L50* L50* L25* L25*
---------- ---- ----- --------- --------- ------------ -------- ----------------- ---- -------- ---- ------- ----
Balance
Extension When
Mod/ per Docs Effective Sent to Balance at the # Mths
Prospectus Extension or Date of Special Effective Date of Old for Rate New New
ID City State Flag Servicer Modification Servicer Modification Rate Change Rate Old P&I P&I
---------- ---- ----- --------- --------- ------------ -------- ----------------- ---- -------- ---- ------- ----
<S> <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:
CMSA Investor Reporting Package
HISTORICAL LOAN MODIFICATION REPORT
as of __________
(Loan Level Report)
<CAPTION>
---------- -------- -------- -------- -------- ----------
S4 L11* L11* L47
---------- -------- -------- -------- -------- ----------
(2) Est.
Future
Interest
Total # (1) Loss to
Mths for Realized Trust $
Prospectus Old New Change Loss to (Rate
ID Maturity Maturity of Mod Trust $ Reduction) COMMENT
---------- -------- -------- -------- -------- ---------- -------
<S> <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:
<FN>
* 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.
</FN>
</TABLE>
<PAGE>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update 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)
<PAGE>
<TABLE>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update File
(Data Record Layout)
Cross Referenced as "L"
<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 Expenses 60 Numeric 1000.00 P62 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year Debt Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then sum the value,
if 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 Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use weighted average
by using the calculation [Current Allocated %
(Prop) * Occupancy (Oper) ] for each Property,
if missing any then leave empty
Second Preceding Fiscal Year Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Most Recent Debt
Service Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted average
by using the calculation [Current Allocated %
(Prop) * Occupancy (Oper) ] for each Property,
if missing any then leave empty
Most Recent Financial As of Start 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 Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then print the latest
date from the affiliated properties. If in
Foreclosure - Expected Date of Foreclosure and
if REO - Expected Sale Date.
Blank 80 AN Blank Left blank on purpose. (Note : was previously Year
Renovated. Use the Property File field 15
instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date
will be the same as setup file unless the loan
is modified and a new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date,
Check Start & End Date Applies to field 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>
Commercial Mortgage Securities Association
CMSA "Loan Periodic" Update File
(Data Record Layout)
Cross Referenced as "L"
Workout Strategy Code Legend
----------------------------
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
11 Full Payoff
12 Reps and Warranties
13 Other or TBD
Liquidation/Prepayment Code
Legend
---------------------------
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase/ Substitution
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
Defeasance Status
Legend
-----------------
P Partial Defeasance
F Full Defeasance
N No Defeasance Occurred
X Defeasance not Allowable
Status of Mortgage Loan
Legend
-----------------------
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 30 days Delinquent
0 Current
1 30-59 Days Delinquent
2 60-89 Days Delinquent
3 90+ Days Delinquent
4 Assumed Scheduled Payment (Performing Matured Balloon)
7 Foreclosure
9 REO
Modification Code
Legend
-----------------
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
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
NOI/NCF Indicator
Legend
-----------------
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
<PAGE>
EXHIBIT W
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
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,
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>
EXHIBIT W
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
<TABLE>
<CAPTION>
PROPERTY OVERVIEW
<S> <C> <C>
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
<FN>
(1) Total $ amount of Capital Reserves required annually by loan documents,
excl. Leasing Commission and TI's
</FN>
</TABLE>
<TABLE>
<CAPTION>
INCOME:
YYYY NOTES
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------ ------------- -------------
<S> <C> <C> <C> <C>
Statement Classification
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:
(ie. 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>
<TABLE>
EXHIBIT W
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
<CAPTION>
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<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 Each S3, L3
Collateral Item In A Pool
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each S4, L4
Collateral Item In The Prospectus
Property ID 4 AN 100-1001 Should contain Prospectus ID and property identifier,
e.g., 100-1001, 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, For example: S75
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
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
---------- ------ ---- ------- -------------------- ----------
<S> <C> <C> <C> <C> <C>
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by Issuer
or Underwriter, use Underwriting NOI or NCF to
calculate
Current Allocated Ending 21 Numberic 5900900.00 Calculation based on Current Allocated Percentage L7
Scheduled Loan 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 lease S74
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental. (Excludes S77
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 26 AN YYYYMMDD Could be different dates for different properties. L79
Resolved or Foreclosed If in Foreclosure - Expected Date 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, MU, OT S62
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types-RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types-RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types-RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types-RT, IN, WH, OF, MU, OT S62
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 42 Numeric 15000
Tenant
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's Fiscal
Year. For example: "12"
Contribution Financials 44 AN YYYYMMDD S72
As Of Date
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the S70
Property Level
Operating Expenses At 46 Numeric 1000000.00 Should match the prospectus if available. At the S71
Contribution Property Level
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the S65
Property Level
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
---------- ------ ---- ------- -------------------- ----------
<S> <C> <C> <C> <C> <C>
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 51 Numeric 0.9 S69
Contribution
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial 53 AN YYYYMMDD L58
As of Date
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year Operating 55 Numeric 1000000.00 L53
Expenses
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt 57 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L55
Service Amount amount for each property
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt service L56
amount
Preceding Fiscal Year Physical 59 Numeric 0.9 L57
Occupancy
Second Preceding FY Financial 60 AN YYYYMMDD L65
As of Date
Second Preceding Fiscal Year 61 Numeric 1000000.00 L59
Revenue
Second Preceding FY Operating 62 Numeric 1000000.00 L60
Expenses
Second Preceding Fiscal 63 Numeric 1000000.00 L61
Year NOI
Second Preceding FY Debt 64 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L62
Service Amount amount for each property
Second Preceding Fiscal 65 Numeric 1.3 Uses the property NOI and the allocated debt service L63
Year DSCR (NOI) amount
Second Preceding FY Physical 66 Numeric 0.9 L64
Occupancy
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 the allocated L69
amount for each property
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt service L70
amount
Most Recent Financial As of 73 AN YYYYMMDD Start date used to calculate Most Recent information L72
Start Date either YTD or trailing 12 months
Most Recent Financial As of 74 AN YYYYMMDD End date used to calculate Most Recent information L73
End Date 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 match the S83
prospectus if available.
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate. Should S84
match the prospectus if available
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to L92
Financial As of Date P53.
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE STIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
---------- ------ ---- ------- -------------------- ----------
<S> <C> <C> <C> <C> <C>
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio using
NCF related to Financial As of Date P53.
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow related to L94
Financial As of Date P60.
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage L95
Ratio using Net Cash Flow related Financial As of
Date P60.
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As of L96
Date P74.
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net Cash L97
Flow related to Financial As of Date P74.
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated L90
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
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
---------------------------- -------------------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
RT 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
</TABLE>
<PAGE>
EXHIBIT W
<TABLE>
CMSA Investor Reporting Package
REO STATUS REPORT
as of __________
(Property Level Report)
Operating Information Reflected As NOI______ or NCF________
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
P16
or
P4 P7 P13 P9 P10 P17 L8 P21 L37 L39 L38 L25
-------- -------- -------- ---- ----- ----- ---- --------- ----------- ----------- ----------- ----------- -------
(a) (b) (c) (d) (e)=a+b+c+d
-------- -------- -------- ---- ----- ----- ---- --------- ----------- ----------- ----------- ----------- -------
Allocated
Ending Other
Sq Ft Paid Scheduled Total P&I Expense Total T&I Current
Property Property Property or Thru Loan Advances Advance Advance Total Monthly
ID Name Type City State Units Date Amount Outstanding Outstanding Outstanding Exposure P&I
-------- -------- -------- ---- ----- ----- ---- --------- ----------- ----------- ----------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------------
P58 or
P72/P79
P4 L11 P53 or P74 or P83 P24 P25 L35 L77 P28
-------- -------- ---------- --------- --------- --------- --------- ------------- --------- -------- -----------
(f) (g) (h)=(.90*g)-e
-------- -------- ---------- --------- --------- --------- --------- ------------- --------- -------- -----------
Appraisal
BPO or
Internal Appraisal Total
LTM LTM Value BPO or Loss using Appraisal REO
Property Maturity NOI/NCF DSCR Valuation Source Internal 90% Appr. or Reduction Transfer Acquisition
ID Date Date (NOI/NCF) Date (1) Value BPO (f) Realized Date Date
-------- -------- ---------- --------- --------- --------- --------- ------------- --------- -------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------
P4 P26
-------- --------
-------- -------- --------
Date
Asset
Expected
Property to be
ID Resolved Comments
-------- -------- --------
<S> <C> <C>
<FN>
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.
</FN>
</TABLE>
SCHEDULE I
LOAN SCHEDULE
Mortgage Loan Schedule for Commercial Mortgage Pass-Through
Certificates - Series 2000-PRIN
<TABLE>
Original Term to
Loan No. Property Name Cut-Off Date Balance Note Date Maturity or ARPD
-------- ------------- -------------------- --------- -----------------
<S> <C> <C> <C> <C>
1 Lighton Plaza Tower, I, & II $30,500,000 12/12/1996 120
2 Woodmen Retail $23,662,833 4/19/1999 120
3 7799 Leesburg Pike $23,601,958 12/20/1996 145
4 Liberty Square Shopping Center $20,184,323 12/15/1997 240
5 1860-2159 Landings Drive $18,675,046 12/05/1997 240
6 3555 Monte Villa Parkway $5,542,604 11/08/1995 180
7 14520 NE 87TH Street $3,876,893 8/31/1995 180
8 26755 SW 95TH Avenue $3,093,689 8/31/1995 180
9 14500 NE 87TH Street $3,038,177 9/05/1995 180
10 14560 NE 87TH Street $2,335,814 10/24/1995 180
11 Sun Center Phase I $16,410,896 4/22/1996 180
12 North Point Village Center $15,203,993 5/31/1994 264
13 461 Fifth Avenue $15,000,000 9/25/1997 105
14 Bird Ludlam Shopping Center $11,974,433 2/13/1997 216
15 11618 Mulberry Avenue $10,992,190 11/03/1997 120
16 2425 South Watney Way $10,303,525 6/05/1999 120
17 311-325 Gellert Boulevard $10,126,552 10/03/1997 240
18 Hilltop Plaza $9,855,994 1/24/1994 240
19 Stop & Shop $9,163,808 9/18/1998 240
20 Yorktown Plaza $8,917,945 10/22/1999 120
21 Aspen Hill Shopping Center $8,093,312 9/24/1991 241
22 5560 Katella Avenue $7,947,843 6/12/1998 300
23 4600, 4650, & 4680 Olson Memorial Highway $7,945,688 4/20/1999 127
24 10900 Research Boulevard $7,881,052 12/11/1996 300
25 Stop & Shop $7,643,889 9/01/1998 240
26 364 Ferguson Drive $7,464,080 9/05/1996 180
27 Sherwin Williams $7,368,502 1/24/1997 238
28 12000 Biscayne Building $7,300,049 5/14/1997 120
29 6100 Gateway Drive & 10700 Valley View Street $7,082,284 8/13/1997 300
30 Don Julian $6,956,551 4/09/1999 120
31 47 Brunswick Avenue $6,461,697 3/31/1997 120
32 ASC Building $6,297,353 2/25/1998 132
33 189 Berdan Avenue $6,100,679 4/13/1989 240
34 42701-42735 Christy Street $6,081,962 11/19/1996 240
35 Wheelersburg Lowes $5,619,323 7/01/1996 240
36 Burlington Lowes $5,457,213 7/03/1996 240
37 Lichtin Office $5,394,847 5/23/1996 120
38 Kroger Center $5,382,516 3/13/1997 300
39 14000 Guadalupe Mines $5,338,761 4/25/1997 144
40 Randall's Austin $5,202,258 8/15/1996 300
41 Hollybrook Plaza $5,026,689 7/08/1998 240
42 110-116,119-123,146-152,156-162,166-170 Keystone Drive $4,990,250 5/14/1997 120
43 8945 Dice Road $4,918,908 11/23/1998 130
44 Oglethorpe Crossing $4,855,013 3/27/1997 240
45 Eisenhower Plaza $4,716,078 8/07/1997 120
46 6580 Via Del Oro $4,563,486 5/26/1999 120
47 Harris Teeter $4,550,519 11/14/1996 240
48 Cobb Parkway $4,467,746 6/04/1996 240
49 532 Race Street $4,319,914 6/04/1999 120
50 16040 Stephens Street $4,278,050 5/27/1999 240
51 I-295 Industrial Center $4,274,640 10/09/1997 120
52 Great Eastern Shopping Center $4,263,903 3/16/1994 240
53 Holiday Publix $4,231,171 12/27/1994 240
54 20559, 20611 & 20621 Prairie Street $4,187,079 11/12/1999 180
55 Waters And Armenia $4,168,744 9/30/1988 300
56 10116 NE 8th Street $4,122,726 3/31/1997 240
57 490 Race Street $4,100,034 1/13/1994 180
58 Oregon Business Center $4,050,281 3/08/1994 240
59 Winn Dixie & Video $4,029,378 6/30/1997 288
60 Publix @ Mt. Zion $3,938,503 5/11/1994 240
61 Blue Springs HyVee $3,913,893 4/07/1992 240
62 Bombay Co. Warehouse $3,913,233 12/18/1996 180
63 5452 Betsy Ross Drive $3,875,980 4/15/1999 120
64 Milstead Crossing Shopping Center $3,862,264 1/29/1999 240
65 Circuit City Stores $3,860,927 7/21/1995 259
66 2076-2098 Nickerson Boulevard $3,736,074 12/02/1997 240
67 2401 West Valley Highway Warehouse $3,712,876 4/19/1996 156
68 6149 S. Norcross Tucker Road $3,643,774 5/05/1995 240
69 9701 Metric Boulevard $3,600,447 4/07/1997 240
70 Iron Mountain $3,586,980 10/06/1997 216
71 Indian Creek Winn Dixie $3,343,816 8/03/1994 240
</TABLE>
<TABLE>
Original Term to
Loan No. Property Name Cut-Off Date Balance Note Date Maturity or ARPD
-------- ------------- -------------------- --------- -----------------
<S> <C> <C> <C> <C>
72 1805-1809 Lower Road $3,339,464 7/01/1997 180
73 Three Meadow Plaza $3,307,130 2/23/1996 240
74 Lyon Village Shopping Center $3,253,507 4/09/1990 228
75 Nashville Food Lion $3,117,287 8/07/1999 240
76 238 240 & 242 Lawrence Avenue $3,113,752 3/27/1997 240
77 Colonial Plaza $3,084,104 6/20/1997 240
78 Pacific Avenue Distribution Center $2,989,729 8/15/1996 240
79 Sprint Spectrum Building $2,973,808 12/18/1996 180
80 Belvedere Kroger $2,965,684 7/07/1994 230
81 Los Alalmitos Industrial $2,965,136 10/13/1998 240
82 17011-17115 Kingsview Avenue $2,954,504 5/16/1997 180
83 575 Redwood $2,940,032 4/07/1999 120
84 10341-10351 Bubb $2,913,868 5/24/1999 120
85 Harris Teeter $2,853,253 6/01/1994 240
86 Walgreens/Payless $2,728,307 2/05/1997 235
87 2009 Country Club Drive $2,723,248 12/16/1996 180
88 7117 Inwood $2,548,045 8/15/1996 300
89 Camfield Corners $2,532,596 11/29/1994 240
90 Shea Plaza Shopping Center $2,518,654 6/24/1998 192
91 Baylands Business Park $2,509,337 8/29/1996 240
92 Kennedy Business Park $2,467,088 4/02/1998 180
93 Home Depot Land $2,466,284 4/29/1994 240
94 9104 Yellow Brick Road $2,411,666 6/16/1995 240
95 Warehouse Cobb International Park $2,404,476 5/22/1996 240
96 5325 E. Thompson Road $2,352,449 12/30/1993 240
97 700 Bradley Hill Road #3 $2,311,910 6/04/1997 180
98 75 Lackawanna Avenue $2,298,380 9/16/1998 180
99 3325 Taylor Road $2,200,805 1/23/1996 180
100 233 E. Harris Street $2,101,638 7/16/1997 180
101 Park Aire Kroger $2,056,427 3/05/1990 240
102 675 County Road $1,998,635 5/01/1997 180
$597,985,115
</TABLE>
<PAGE>
<TABLE>
Loan No. Rem, Term Orig. Amort. Rem. Amort. Rate Monthly Debt Service Seasoning LO DEF YM1
-------- --------- ------------ ----------- ---- -------------------- --------- -- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 75 360 360 7.190% $182,746 45 96
2 104 360 344 6.870% $157,583 16 60 60
3 100 300 255 7.880% $190,971 45 138
4 207 300 267 7.970% $161,664 33 240
5 207 240 207 7.460% $160,630 33 240
6 121 180 121 7.990% $66,856 59 60 120
7 119 180 119 7.990% $47,277 61 60 120
8 119 180 119 7.990% $37,726 61 60 120
9 119 180 119 7.680% $36,554 61 60 120
10 121 180 121 7.990% $28,175 59 60 120
11 127 300 247 8.480% $140,679 53 175
12 188 264 188 8.440% $146,039 76 261
13 69 IO IO 7.600% $95,000 36 106
14 173 216 173 7.680% $114,665 43 216
15 85 180 145 8.210% $119,767 35 120
16 105 300 285 7.200% $75,557 15 120
17 205 240 205 8.000% $90,754 35 240
18 160 240 160 8.000% $100,373 80 240
19 216 276 252 7.460% $72,091 24 240
20 111 300 291 8.400% $71,865 9 120
21 133 241 133 10.000% $101,327 108 240
22 274 300 274 7.780% $62,099 26 300
23 110 300 290 7.170% $57,736 17 120
24 255 300 255 8.590% $67,338 45 300
25 215 360 335 7.500% $54,539 25 235
26 132 180 132 8.125% $85,709 48 180
27 195 238 195 7.490% $65,441 43 235
28 80 360 320 8.740% $58,949 40 120
29 263 300 263 8.160% $57,901 37 300
30 104 300 284 7.140% $50,817 16 120
31 79 300 259 7.950% $52,258 41 118
32 101 300 281 7.290% $46,787 31 12 116
33 103 300 163 10.250% $69,479 137 120 120
34 194 240 194 7.875% $55,522 46 240
35 189 240 189 7.900% $52,055 51 240
36 189 240 189 7.750% $50,078 51 240
37 68 293 224 7.670% $45,370 52 36 84
38 258 300 258 8.480% $45,419 42 60 240
39 104 216 176 8.000% $51,623 40 120 21
40 251 300 251 8.530% $44,500 49 300
41 213 240 213 6.990% $41,253 27 240
42 80 240 200 8.200% $45,842 40 116
43 108 300 287 7.160% $35,851 22 130
44 198 240 198 7.300% $42,249 42 240
45 83 265 228 8.180% $40,856 37 120
46 105 240 225 7.280% $37,234 15 96 21
47 194 240 194 7.650% $40,943 46 84 156
48 189 240 189 7.650% $40,740 51 240
49 105 300 285 7.380% $32,173 15 96 21
50 225 240 225 7.680% $35,932 15 240
51 85 216 181 8.140% $41,080 35 116
52 162 240 162 7.550% $42,050 78 240
53 171 240 171 7.600% $40,586 69 240
54 171 180 171 8.200% $41,591 9 180
55 156 276 156 7.340% $41,545 144 121
56 199 240 199 7.530% $36,335 41 240
57 100 300 220 7.875% $35,272 80 177
58 162 240 162 7.970% $40,894 78 240
59 249 288 249 7.900% $32,959 39 288
60 164 276 200 7.350% $34,211 76 237
61 139 240 139 9.000% $45,436 101 240
62 135 180 135 8.170% $44,413 45 180
63 104 240 224 7.300% $31,737 16 120
64 220 252 232 7.600% $31,815 20 240
65 197 300 238 7.970% $32,333 62 259
66 206 240 206 7.800% $32,961 34 240
67 104 264 212 7.230% $31,064 52 61 93
68 176 288 224 8.750% $33,064 64 236
69 199 240 199 7.740% $32,173 41 240
70 181 216 181 8.200% $34,597 35 213
71 166 240 166 8.720% $34,743 74 240
72 141 240 201 8.370% $30,946 39 180
73 185 240 185 7.500% $30,210 55 240
74 103 228 103 9.375% $46,100 125 114 114
75 227 240 227 7.000% $24,810 13 240
</TABLE>
<PAGE>
<TABLE>
Loan No. Rem, Term Orig. Amort. Rem. Amort. Rate Monthly Debt Service Seasoning LO DEF YM1
-------- --------- ------------ ----------- ---- -------------------- --------- -- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
76 198 240 198 7.750% $27,913 42 180 60
77 201 240 201 8.360% $28,561 39 240
78 191 240 191 8.400% $28,430 49 240
79 135 180 135 8.070% $33,589 45 180
80 156 240 166 8.625% $30,651 74 230
81 217 240 217 7.100% $24,299 23
82 140 180 140 8.100% $32,689 40 180
83 104 300 284 7.210% $21,607 16 120
84 105 240 225 7.380% $23,949 15 96 21
85 166 240 166 8.063% $28,571 74 240
86 192 235 192 7.700% $24,757 43 235
87 135 180 135 8.200% $30,951 45 180
88 251 300 251 8.530% $21,796 49 300
89 170 240 170 7.650% $24,444 70 60 180
90 165 192 165 6.800% $23,537 27 192
91 192 240 192 8.375% $23,765 48 180 60
92 150 180 150 7.030% $24,764 30 180
93 163 240 163 7.500% $24,168 77 240
94 178 240 178 8.550% $23,953 62 240
95 188 240 188 7.600% $21,916 52 240
96 159 300 219 8.625% $21,359 81 240
97 141 180 141 8.070% $25,432 39 180
98 156 180 156 7.060% $22,555 24 180
99 124 180 124 7.660% $25,744 56 180
100 143 180 143 8.230% $23,111 37 180
101 114 240 150 9.875% $23,919 126 120 120
102 140 180 140 8.100% $22,113 40 180
7.856%
</TABLE>
