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DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
KEY CORPORATE CAPITAL INC.
d/b/a KEY COMMERCIAL MORTGAGE,
as Master Servicer and Special Sub-Servicer,
MIDLAND LOAN SERVICES, INC.,
as Special Servicer,
and
WELLS FARGO BANK MINNESOTA, N.A.,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2000
$1,289,918,771
Commercial Mortgage Pass-Through Certificates
Series 2000-CKP1
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS
IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms................................................ 3
SECTION 1.02. General Interpretive Principles.............................. 55
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool......... 56
SECTION 1.04. Cross-Collateralized Mortgage Loans.......................... 57
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II
REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans................................. 59
SECTION 2.02. Acceptance of Mortgage Assets by Trustee..................... 62
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage
Loans by the Mortgage Loan Sellers and Union Capital....... 64
SECTION 2.04. Representations and Warranties of the Depositor.............. 68
SECTION 2.05. Representations and Warranties of the Master Servicer....... 70
SECTION 2.06. Representations and Warranties of the Special Servicer....... 71
SECTION 2.07. Representations, Warranties and Covenants of the Trustee..... 73
SECTION 2.08. Representations and Warranties of the Special Sub-Servicer... 74
SECTION 2.09. Designation of the Certificates.............................. 76
SECTION 2.10. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Class R; Certain Matters
Involving REMIC I.......................................... 76
SECTION 2.11. Conveyance of the REMIC I Regular Interests; Acceptance
of the REMIC I Regular Interests by Trustee................ 79
SECTION 2.12. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest;
Certain Matters Involving REMIC II......................... 80
SECTION 2.13. Conveyance of the REMIC II Regular Interests;
Acceptance of the REMIC II Regular Interests
by Trustee................................................. 82
SECTION 2.14. Creation of REMIC III; Issuance of the REMIC III Regular
Interest Certificates and the REMIC III Residual Interest;
Certain Matters Involving REMIC III........................ 83
SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of
the Class D, Class E and Class R Certificates.............. 86
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans......................... 88
SECTION 3.02. Collection of Mortgage Loan Payments......................... 89
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SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts......................... 89
SECTION 3.04. Collection Account, Distribution Account, Interest
Reserve Account and Excess Liquidation Proceeds Account.... 92
SECTION 3.05. Permitted Withdrawals From the Collection Account,
the Distribution Account, the Interest Reserve Account
and the Excess Liquidation Proceeds Account................. 94
SECTION 3.06. Investment of Funds in the Collection Account,
Servicing Accounts, Reserve Accounts and the
REO Account................................................ 99
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage............................ 101
SECTION 3.08. Enforcement of Alienation Clauses............................ 104
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.................... 105
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.............. 108
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
and any Fiscal Agent Regarding Back-up
Servicing Advances......................................... 109
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................. 113
SECTION 3.13. Annual Statement as to Compliance............................ 118
SECTION 3.14. Reports by Independent Public Accountants.................... 118
SECTION 3.15. Access to Certain Information................................ 119
SECTION 3.16. Title to REO Property; REO Account........................... 119
SECTION 3.17. Management of REO Property................................... 120
SECTION 3.18. Sale of Mortgage Loans and REO Properties.................... 123
SECTION 3.19. Additional Obligations of Master Servicer.................... 126
SECTION 3.20. Modifications, Waivers, Amendments and Consents.............. 129
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping........................... 133
SECTION 3.22. Sub-Servicing Agreements..................................... 134
SECTION 3.23. Controlling Class Representative............................. 137
SECTION 3.24. Certain Rights and Powers of the Controlling
Class Representative....................................... 139
SECTION 3.25. Replacement of Special Servicer.............................. 141
SECTION 3.26. Application of Default Charges............................... 142
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................ 144
SECTION 4.02. Statements to Certificateholders; Certain
Other Reports.............................................. 150
SECTION 4.03. P&I Advances................................................. 153
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.............................155
SECTION 4.05. Calculations................................................. 156
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates............................................. 157
SECTION 5.02. Registration of Transfer and Exchange of Certificates........ 157
SECTION 5.03. Book-Entry Certificates...................................... 164
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............ 165
SECTION 5.05. Persons Deemed Owners........................................ 165
SECTION 5.06. Certification by Certificate Owners.......................... 165
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE SPECIAL SUB-SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer,
the Special Servicer and the Special Sub-Servicer.......... 167
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the
Special Sub-Servicer....................................... 167
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and the Special Sub-Servicer.......... 167
SECTION 6.04. Resignation of Master Servicer, Special Servicer and
Special Sub-Servicer....................................... 168
SECTION 6.05. Rights of the Depositor and the Trustee in Respect
of the Master Servicer, the Special Servicer and
the Special Sub-Servicer................................... 169
SECTION 6.06. Master Servicer, Special Servicer or Special
Sub-Servicer as Owner of a Certificate..................... 170
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default............................................ 172
SECTION 7.02. Trustee to Act; Appointment of Successor..................... 175
SECTION 7.03. Notification to Certificateholders........................... 176
SECTION 7.04. Waiver of Events of Default.................................. 176
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default......... 177
SECTION 7.06. Termination of Special Sub-Servicer.......................... 177
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................ 178
SECTION 8.02. Certain Matters Affecting the Trustee........................ 179
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.............. 181
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................ 181
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and
by Trustee and Fiscal Agent................................ 181
SECTION 8.06. Eligibility Requirements for Trustee......................... 183
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SECTION 8.07. Resignation and Removal of Trustee........................... 183
SECTION 8.08. Successor Trustee............................................ 184
SECTION 8.09. Merger or Consolidation of Trustee........................... 185
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................ 185
SECTION 8.11. Appointment of Custodians.................................... 186
SECTION 8.12. Access to Certain Information................................ 186
SECTION 8.13. Appointment of Fiscal Agent.................................. 188
SECTION 8.14. Advance Security Arrangement................................. 189
SECTION 8.15. Filings with the Securities and Exchange Commission.......... 190
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans....................................... 192
SECTION 9.02. Additional Termination Requirements........................ 194
ARTICLE X ADDITIONAL TAX PROVISIONS 195
SECTION 10.01. Tax Administration.......................................... 195
SECTION 10.02. Depositor, Master Servicer, Special Servicer,
Special Sub-Servicer and Fiscal Agent to
Cooperate with Trustee.................................... 198
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment................................................... 199
SECTION 11.02. Recordation of Agreement; Counterparts...................... 200
SECTION 11.03. Limitation on Rights of Certificateholders.................. 200
SECTION 11.04. Governing Law............................................... 201
SECTION 11.05. Notices..................................................... 201
SECTION 11.06. Severability of Provisions.................................. 202
SECTION 11.07. Successors and Assigns; Beneficiaries....................... 202
SECTION 11.08. Article and Section Headings................................ 202
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor... 202
SECTION 11.10. Notices to Controlling Class Representative................. 204
SECTION 11.11. Complete Agreement.......................................... 204
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EXHIBITS
EXHIBIT A-1 Form of Class S Certificates
EXHIBIT A-2 Form of Class A-1A and Class A-1B Certificates
EXHIBIT A-3 Form of Class A-2, Class A-3, Class A-4, Class B-1, Class B-2 and
Class B-3 Certificates
EXHIBIT A-4 Form of Class B-4, Class B-5, Class B-6, Class
B-7, Class B-8, Class B-9 and Class C Certificates
EXHIBIT A-5 Form of Class D and Class E Certificates
EXHIBIT A-6 Form of Class R Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of KeyBank Mortgage Loans
EXHIBIT B-1C Schedule of PMCF Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT C Letters of Representations Among Depositor, Trustee and
Initial Depositary
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer/Special Sub-Servicer Request for Release
EXHIBIT E Form of Trustee Report
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form I of Transferee Certificate for Transfers of
Interests in Class S Certificates Held in Book-Entry Form
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of Interests
in Class S Certificates Held in Book-Entry Form
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Definitive Subordinated Certificates)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA
(Class S Certificates Held in Book-Entry Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of
Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of
Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement
of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of Column Mortgage Loan Purchase Agreement
EXHIBIT M-2 Form of KeyBank Mortgage Loan Purchase Agreement
EXHIBIT M-3 Form of PMCF Mortgage Loan Purchase Agreement
EXHIBIT N Form of Union Capital Agreement
EXHIBIT O Schedule of Designated Sub-Servicers
EXHIBIT P Format and Frequency of Servicer Reports to the Controlling Class
Representative
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This Pooling and Servicing Agreement is dated and effective as of November
1, 2000, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, KEY CORPORATE CAPITAL
INC. d/b/a KEY COMMERCIAL MORTGAGE as Master Servicer and Special Sub-Servicer,
MIDLAND LOAN SERVICES, INC. as Special Servicer and WELLS FARGO BANK MINNESOTA,
N.A. as Trustee.
PRELIMINARY STATEMENT:
Column Financial, Inc. (together with its successors in interest, "Column")
has sold to DLJ Commercial Mortgage Corp. (together with its successors in
interest, the "Depositor"), pursuant to the Mortgage Loan Purchase Agreement
dated as of October 27, 2000 (as such may from time to time hereafter be
amended, modified, supplemented and/or restated, the "Column Mortgage Loan
Purchase Agreement"), between Column as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1A (such mortgage loans, the "Original Column Mortgage Loans"). A form
of the Column Mortgage Loan Purchase Agreement is attached hereto as Exhibit
M-1.
KeyBank National Association (together with its successors in interest,
"KeyBank") has sold to the Depositor, pursuant to the Mortgage Loan Purchase
Agreement dated as of October 27, 2000 (as such may from time to time hereafter
be amended, modified, supplemented and/or restated, the "KeyBank Mortgage Loan
Purchase Agreement"), between KeyBank as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1B (such mortgage loans, the "Original KeyBank Mortgage Loans"). A
form of the KeyBank Mortgage Loan Purchase Agreement is attached hereto as
Exhibit M-2.
Prudential Mortgage Capital Funding, LLC (together with its successors in
interest, "PMCF") has sold to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of October 27, 2000 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "PMCF Mortgage
Loan Purchase Agreement"), between PMCF as seller, Prudential Mortgage Capital
Company, LLC (together with its successors in interest, "PMCC") as the
additional signatory and the Depositor as purchaser, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1C (such
mortgage loans, the "Original PMCF Mortgage Loans"). A form of the PMCF Mortgage
Loan Purchase Agreement is attached hereto as Exhibit M-3.
The Depositor desires, among other things, to: (i) establish a trust fund,
consisting primarily of the Original Column Mortgage Loans, the Original KeyBank
Mortgage Loans and the Original PMCF Mortgage Loans (collectively, the "Original
Mortgage Loans") and certain related rights, funds and property; (ii) cause the
issuance of mortgage pass-through certificates in multiple classes, which
certificates will, in the aggregate, evidence the entire beneficial ownership
interest in such trust fund; and (iii) provide for the servicing and
administration of the mortgage loans, including the Original Mortgage Loans, and
the other assets that from time to time constitute part of such trust fund.
Wells Fargo Bank Minnesota, N.A. (together with its successors in interest,
"Wells Fargo") desires to act as "Trustee" hereunder; Key Corporate Capital Inc.
d/b/a Key Commercial Mortgage (together with its successors in interest, "KCCI")
desires to act as "Master Servicer" and "Special Sub-Servicer" hereunder; and
Midland Loan Services, Inc. (together with its successors in interest,
"Midland") desires to act as "Special Servicer" hereunder.
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In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues interest on
a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the first
day on which such REO Property is considered to be acquired by the Trust within
the meaning of Treasury regulation Section 1.856-6(b)(1), which is the first day
on which the Trust is treated as the owner of such REO Property for federal
income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that accrues interest
on an Actual/360 Basis.
"Actual/365 Basis" shall mean the accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 365 days.
"Actual/365 Mortgage Loan" shall mean a Mortgage Loan that accrues interest
on an Actual/365 Basis.
"Additional Collateral" shall mean any non-real property collateral
(including any Letter of Credit) pledged and/or delivered by the related
Borrower and held by the related Mortgagee to secure payment on any Mortgage
Loan.
"Additional Master Servicing Compensation" shall have the meaning assigned
thereto in Section 3.11(b).
"Additional Special Servicing Compensation" shall have the meaning assigned
thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the
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Holders of any Class of REMIC III Regular Interest Certificates receiving less
than the total of their Current Interest Distribution Amount, Carryforward
Interest Distribution Amount and Principal Distribution Amount for any
Distribution Date.
"Additional Yield Amount" shall have the meaning assigned thereto in
Section 4.01(d).
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1A, for any Interest
Accrual Period, 6.930% per annum;
(b) with respect to REMIC II Regular Interest A-1B, for any Interest
Accrual Period, 7.180% per annum;
(c) with respect to REMIC II Regular Interest A-2, for any Interest Accrual
Period, 7.350% per annum;
(d) with respect to REMIC II Regular Interest B-3, for any Interest Accrual
Period, a rate per annum equal to the related REMIC II Remittance Rate for such
Interest Accrual Period;
(e) with respect to each of REMIC II Regular Interests B-4, B-5, B-6, B-7,
B-8, B-9 and C, for any Interest Accrual Period, 6.527% per annum;
(f) with respect to each other REMIC II Regular Interest, for any Interest
Accrual Period, a rate per annum equal to the lesser of (i) the related REMIC II
Remittance Rate for such Interest Accrual Period and (ii) the related "Fixed Cap
Rate" specified below:
REMIC II REGULAR INTEREST FIXED CAP RATE
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A-3 7.500% per annum
A-4 7.600% per annum
B-1 7.950% per annum
B-2 8.000% per annum
"Administrative Fee Rate" shall mean, with respect to each Mortgage Loan
(and any successor REO Mortgage Loan), the sum of the related Master Servicing
Fee Rate, plus the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any Advance at the
Reimbursement Rate, which is payable to the party hereto that made that Advance,
all in accordance with Section 3.11(g) or Section 4.03(d), as applicable.
"Advance Security Arrangement" shall have the meaning assigned thereto in
Section 8.14.
"Adverse Grantor Trust Event" shall mean either: (i) any impairment of the
status of any Grantor Trust Pool as a Grantor Trust; or (ii) the imposition of a
tax upon any Grantor Trust Pool or any of its assets or transactions.
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"Adverse Rating Event" shall mean, with respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of the status
of any REMIC Pool as a REMIC; or (ii) except as permitted by Section 3.17(a),
the imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions set forth in Section 860G(d) of the
Code).
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing Date.
"A.M. Best" shall mean A.M. Best Company or its successor in interest.
"Annual Accountants' Report" shall have the meaning assigned thereto in
Section 3.14.
"Annual Performance Certification" shall have the meaning assigned thereto
in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD Loan, the
date specified in the related Mortgage Note, as of which Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is prior to the
Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with USPAP (or, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $1,000,000 or less, unless the Controlling
Class Representative otherwise objects, either a limited appraisal and a summary
report or an internal valuation prepared by the Special Servicer) that (i)
indicates the "market value" of the subject property (within the meaning of 12
CFR ss. 225.62(g)) and (ii) is conducted by a Qualified Appraiser (except that,
in the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $1,000,000 or less, unless the
Controlling Class Representative otherwise objects, the appraiser may be an
employee of the Special Servicer).
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated as of the Determination Date immediately
following the later of the date on which the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof was obtained by the Special
Servicer pursuant to this Agreement and the date of the most recent Appraisal
Trigger Event with respect to such Required Appraisal Loan) equal to the excess,
if any, of:
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(1) the sum of (a) the Stated Principal Balance of such Required Appraisal
Loan as of such Determination Date, (b) to the extent not previously advanced by
or on behalf of the Master Servicer, the Trustee or any Fiscal Agent, all unpaid
interest (net of Default Interest and, in the case of an ARD Loan after its
Anticipated Repayment Date, Post-ARD Additional Interest) accrued on such
Required Appraisal Loan through the most recent Due Date prior to such
Determination Date, (c) all unpaid Special Servicing Fees accrued with respect
to such Required Appraisal Loan, (d) all related unreimbursed Advances made by
or on behalf of the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent with respect to such Required Appraisal Loan, together with all
unpaid Advance Interest accrued on such Advances, and (e) all currently due but
unpaid real estate taxes and assessments, insurance premiums and, if applicable,
ground rents in respect of the related Mortgaged Property or REO Property, as
applicable; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised Value of
the related Mortgaged Property or REO Property, as applicable, as determined by
the most recent relevant Appraisal acceptable for purposes of Section 3.19(c)
hereof, over (ii) the amount of any obligation(s) secured by any liens on such
Mortgaged Property or REO Property, as applicable, that are prior to the lien of
such Required Appraisal Loan, and (y) any Escrow Payments, Reserve Funds and/or
Letters of Credit held by the Master Servicer or the Special Servicer with
respect to such Required Appraisal Loan, the related Mortgaged Property or any
related REO Property (exclusive of any such Escrow Payments and Reserve Funds,
the application of which was assumed in determining the Appraised Value of the
related Mortgaged Property or REO Property, as applicable, referred to in clause
(2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event occurs
with respect to any Mortgage Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(c), with
respect to the related Mortgaged Property during the 12-month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(c), within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(c), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Loan, and (y) upon receipt or performance, as
applicable in accordance with Section 3.19(c), of such new Appraisal by the
Special Servicer, the Appraisal Reduction Amount for such Required Appraisal
Loan will be recalculated in accordance with the preceding sentence of this
definition.
"Appraisal Trigger Event" shall mean, with respect to any Mortgage Loan,
any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan;
(ii) 60 days after the Special Servicer receives notices that the
Borrower under such Mortgage Loan becomes the subject of bankruptcy,
insolvency or similar proceedings;
(iii) any Monthly Payment with respect to such Mortgage Loan remains
unpaid for 120 days past the Due Date for such payment;
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(iv) 60 days after the Special Servicer receives notices that a
receiver or similar official is appointed with respect to the related
Mortgaged Property; or
(v) the related Mortgaged Property becomes an REO Property.
"Appraised Value" shall mean, with respect to each Mortgaged Property or
REO Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained or conducted, as appropriate, pursuant to this Agreement;
provided, however, that, for purposes of this Agreement, no party hereto may
rely on an Appraisal that is more than 12 months old (it being understood and
agreed that this provision is not intended by itself to impose any separate
obligation on any party hereto to periodically update Appraisals).
"ARD Loan" shall mean a Mortgage Loan that provides for the accrual of
Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in full
on or prior to its Anticipated Repayment Date.
"Assignment of Leases" shall mean, with respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan, as such assignment may be amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan delinquent in respect of
its Balloon Payment beyond the Determination Date immediately following its
scheduled maturity date (as such date may be extended in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower
or by reason of a modification, waiver or amendment granted or agreed to by
the Master Servicer or the Special Servicer pursuant to Section 3.20), for
that scheduled maturity date and for each subsequent Due Date as of which
such Mortgage Loan remains outstanding and part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due
with respect to such Mortgage Loan on such Due Date equal to the amount
that would have been due in respect thereof on such Due Date (other than
any Default Interest) if such Mortgage Loan had been required to continue
to accrue interest in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any), in effect immediately
prior to, and without regard to the occurrence of, such maturity date; and
(b) with respect to any REO Mortgage Loan, for any Due Date as of
which the related REO Property remains part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment (or, in the
case of a Balloon Mortgage Loan described in clause (a) of this definition,
the Assumed Monthly Payment) that was due (or deemed due) with respect to
the related Mortgage Loan on the last Due Date prior to its becoming an REO
Mortgage Loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date (or,
in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
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"Balloon Payment" shall mean any Monthly Payment payable on a Mortgage Loan
at scheduled maturity that is at least six times as large as the normal Monthly
Payment due on such Mortgage Loan.
"Banana Republic Loan" shall mean the Mortgage Loan secured by (or any REO
Mortgage Loan relating to) the Mortgaged Property identified on the Mortgage
Loan Schedule as "Banana Republic".
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as amended from
time to time (Title 11 of the United States Code).
"Base Prospectus" shall mean that certain prospectus dated October 17,
2000, relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Bond Level File" shall mean the monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA Bond Level File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"Book-Entry Certificate" shall mean any Certificate registered in the name
of the Depositary or its nominee.
"Book-Entry Subordinate Certificate" shall mean any Subordinate Certificate
that constitutes a Book-Entry Certificate.
"Borrower" shall mean, individually and collectively, as the context may
require, the obligor or obligors under a Mortgage Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Mortgage Loan.
"Breach" shall mean, with respect to any Mortgage Loan, any breach of
representation or warranty made by a Mortgage Loan Seller pursuant to Section 4
of the related Mortgage Loan Purchase Agreement or, in the case of a Union
Capital Mortgage Loan, made by Union Capital pursuant to the Union Capital
Agreement.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Minneapolis, Minnesota, the
city or cities in which the Primary Servicing Offices of the Master Servicer,
the Special Servicer and the Special Sub-Servicer are located or the city in
which the Corporate Trust Office of the Trustee is located, are authorized or
obligated by law or executive order to remain closed.
"Carryforward Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest for any Distribution
Date, have the meaning assigned thereto in Section 2.10(g);
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(b) with respect to any REMIC II Regular Interest for any Distribution
Date, have the meaning assigned thereto in Section 2.12(g); and
(c) with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date, have the meaning assigned thereto
in Section 2.14(g);
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor" shall mean, with respect to any Class of REMIC III
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to eight places, the numerator of which is the
related Class Principal Balance or Class Notional Amount, as the case may be,
then outstanding, and the denominator of which is the related Class Principal
Balance or Class Notional Amount, as the case may be, outstanding as of the
Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Person shall be
a "Holder" of, or a "Certificateholder" with respect to, a Class R Certificate
for any purpose hereof; and (ii) solely for purposes of giving any consent,
approval, direction or waiver pursuant to this Agreement that specifically
relates to the rights, duties and/or obligations hereunder of any of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee or any Fiscal Agent in its respective capacity as such (other than
any consent, approval or waiver contemplated by any of Sections 3.23, 3.24 and
3.25), any Certificate registered in the name of such party or in the name of
any Affiliate thereof shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver that specifically relates to such party has been
obtained. The Certificate Registrar shall be entitled to request and
conclusively rely upon a certificate of the Depositor, the Master Servicer, the
Special Servicer or the Special Sub-Servicer in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Certificateholders" or "Holders" shall reflect the rights
of Certificate Owners only insofar as they may indirectly exercise such rights
through the Depositary and the Depositary Participants (except as otherwise
specified herein), it being herein acknowledged and agreed that the parties
hereto shall be required to recognize as a "Certificateholder" or "Holder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the Trustee Report
and the CMSA Investor Reporting Package.
"Certificate Notional Amount" shall mean, with respect to any Class S
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class S Certificates, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner" shall mean, with respect to any Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depositary or on the
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books of a Depositary Participant or on the books of an indirect participating
brokerage firm for which a Depositary Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean the register
maintained and the registrar appointed pursuant to Section 5.02.
"CFSB" shall mean Credit Suisse First Boston Corporation or its successor
in interest.
"Class" shall mean, collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation and having the same
payment terms. The respective Classes of Certificates are designated in Section
2.09(a).
"Class A Certificate" shall mean any of the Certificates designated as such
in Section 2.09(b).
"Class A-1A Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "A-1A".
"Class A-1B Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "A-1B".
"Class A-2 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "A-2".
"Class A-3 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "A-3".
"Class A-4 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "A-4".
"Class B Certificate" shall mean any of the Certificates designated as such
in Section 2.09(c).
"Class B-1 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-1".
"Class B-2 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-2".
"Class B-3 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-3".
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"Class B-4 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-4".
"Class B-5 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-5".
"Class B-6 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-6".
"Class B-7 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-7".
"Class B-8 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-8".
"Class B-9 Certificate" shall mean any of the Certificates which
collectively constitute the Class bearing the class designation "B-9".
"Class C Certificate" shall mean any of the Certificates which collectively
constitute the Class bearing the class designation "C".
"Class D Certificate" shall mean any of the Certificates which collectively
constitute the Class bearing the class designation "D".
"Class D Sub-Account" shall mean a sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and Grantor Trust D, but not an asset of any REMIC Pool.
"Class E Certificate" shall mean any of the Certificates which collectively
constitute the Class bearing the class designation "E".
"Class E Sub-Account" shall mean a sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and Grantor Trust E, but not an asset of any REMIC Pool.
"Class Notional Amount" shall mean the aggregate hypothetical or notional
amount on which the Class S Certificates (as a collective whole) accrue interest
from time to time, as calculated in accordance with Section 2.13(e).
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates, as
calculated in accordance with Section 2.13(e).
"Class R Certificate" shall mean any of the Certificates which collectively
constitute the Class bearing the class designation "R".
"Class S Certificate" shall mean any of the Certificates which collectively
constitute the Class bearing the class designation "S".
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"Class S Portion" shall mean:
(a) when used with respect to the Interest Accrual Amount in respect
of any REMIC II Regular Interest for any Interest Accrual Period, the
portion of such Interest Accrual Amount that is equal to the product of (i)
the entire such Interest Accrual Amount, multiplied by (ii) a fraction (not
less than zero or greater than one), the numerator of which is the excess,
if any, of the REMIC II Remittance Rate with respect to such REMIC II
Regular Interest for such Interest Accrual Period, over the Adjusted REMIC
II Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period, and the denominator of which is the REMIC II
Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period;
(b) when used with respect to the Current Interest Distribution Amount
in respect of any REMIC II Regular Interest for any Distribution Date, the
portion of such Current Interest Distribution Amount that is equal to (i)
the Class S Portion of the Interest Accrual Amount with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, reduced
(to not less than zero) by (ii) the product of (A) any portion of the Net
Aggregate Prepayment Interest Shortfall for such Distribution Date that is
allocable to such REMIC II Regular Interest in accordance with Section
2.12(g), multiplied by (B) a fraction, the numerator of which is equal to
the Class S Portion of the Interest Accrual Amount with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, and the
denominator of which is equal to the entire Interest Accrual Amount with
respect to such REMIC II Regular Interest for the related Interest Accrual
Period; and
(c) when used with respect to the Carryforward Interest Distribution
Amount in respect of any REMIC II Regular Interest for any Distribution
Date, the portion of such Carryforward Interest Distribution Amount that is
equal to the excess, if any, of (i) the aggregate of the Class S Portions
of all Current Interest Distribution Amounts with respect to such REMIC II
Regular Interest for all prior Distribution Dates, if any, over (ii) the
aggregate amount of interest deemed distributed to REMIC III with respect
to such REMIC II Regular Interest on all such prior Distribution Dates, if
any, pursuant to the first two sentences of Section 4.01(k).
"Closing Date" shall mean November 7, 2000.
"CMSA" shall mean the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) Loan Setup File, (ii) Loan
Periodic Update File, (iii) Property File, (iv) Bond Level File, (v)
Financial File and (vi) Collateral Summary File; and
(b) the following eight supplemental reports: (i) Delinquent Loan
Status Report, (ii) Historical Loan Modification Report, (iii) Historical
Liquidation Report, (iv) REO Status Report, (v) Operating Statement
Analysis Report, (vi) Comparative Financial Status Report, (vii) Servicer
Watch List and (viii) NOI Adjustment Worksheet.
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Notwithstanding anything to the contrary contained herein, the obligation of the
Master Servicer and the Special Servicer to deliver the Financial File or the
Property File as part of the CMSA Investor Reporting Package shall be subject to
Section 3.12(h).
"CMSA Website" shall mean the CMSA's Website located at "www.cssacmbs.org".
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collateral Summary File" shall mean the report substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Collateral Summary File" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Trustee.
"Collection Account" shall mean the segregated account or accounts created
and maintained by the Master Servicer, pursuant to Section 3.04(a), in trust for
the Certificateholders, which shall be entitled "Key Corporate Capital Inc.
d/b/a Key Commercial Mortgage [or the name of any successor Master Servicer], as
Master Servicer, in trust for the registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1,
Collection Account".
"Collection Period" shall mean, with respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing November 2, 2000) and ending
on and including the Determination Date in the calendar month in which such
Distribution Date occurs.
"Column" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Column Mortgage Loan Purchase Agreement" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Commission" shall mean the Securities and Exchange Commission or any
successor thereto.
"Comparative Financial Status Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable, and in any event, setting forth, among other things, (a) the
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occupancy and Debt Service Coverage Ratio for each Mortgage Loan or related
Mortgaged Property, as applicable, as of the date of the latest financial
information (covering no less than twelve (12) consecutive months) available
immediately preceding the preparation of such report; and (b) the revenue,
expense and Net Operating Income for each of the following periods (to the
extent such information is in the Master Servicer's or the Special Servicer's
possession or under its control): (i) the most current available year-to-date,
(ii) each of the previous two (2) full fiscal years stated separately; and (iii)
the "base year" (representing, in the case of any Original Mortgage Loan, the
original analysis of information used as of the Due Date for such Mortgage Loan
in November 2000). For the purposes of the production by Master Servicer or the
Special Servicer of any such report that is required to state information with
respect to any Original Mortgage Loan for any period prior to the related Due
Date in November 2000, the Master Servicer or the Special Servicer, as the case
may be, may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller, by the related Borrower or (x) in the case of such a report produced by
the Master Servicer, by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof) and (y) in the case of such a report produced by the
Special Servicer, by the Master Servicer (if other than the Special Servicer or
an Affiliate thereof).
"Compensating Interest Payment" shall mean, with respect to any
Distribution Date, any payment made by the Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Condemnation Proceeds" shall mean all cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation, exclusive of any portion thereof required to be released to the
related Borrower or any other third-party in accordance with applicable law
and/or the terms and conditions of the related Mortgage Note and Mortgage or any
document to which the related Mortgage Note and Mortgage are subordinate.
"Controlling Class" shall mean, as of any date of determination, the Class
of Principal Balance Certificates with the lowest payment priority pursuant to
Sections 4.01(a) and 4.01(b), that has a then outstanding Class Principal
Balance that is not less than 25% of its initial Class Principal Balance;
provided that, if no Class of Principal Balance Certificates has a Class
Principal Balance that satisfies the foregoing requirement, then the Controlling
Class shall be the Class of Principal Balance Certificates with the lowest
payment priority pursuant to Sections 4.01(a) and 4.01(b), that has a then
outstanding Class Principal Balance greater than zero. For purposes of this
definition, the Class A-1A and Class A-1B Certificates shall be treated as a
single Class and, if appropriate under the terms of this definition, shall
collectively constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder of Certificates
of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned thereto
in Section 3.23(a).
"Corporate Trust Office" shall mean the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken
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Land Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust
Administration/DLJ Commercial Mortgage Corp. Series 2000-CKP1.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but as to which all Servicing Transfer Events
have ceased to exist.
"Corresponding Class of Principal Balance Certificates" shall mean, with
respect to any REMIC II Regular Interest, the Class of Principal Balance
Certificates that has an alphabetical and, if applicable, numerical Class
designation that is the same as the alphabetical and, if applicable, numerical
designation for such REMIC II Regular Interest.
"Corresponding REMIC II Regular Interest" shall mean, with respect to any
Class of Principal Balance Certificates, the REMIC II Regular Interest that has
an alphabetical and, if applicable, numerical designation that is the same as
the alphabetical and, if applicable, numerical Class designation for such Class
of Principal Balance Certificates.
"Cross-Collateralized Group" shall mean any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan, that is,
by its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan.
"Current Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest for any Distribution
Date, have the meaning assigned thereto in Section 2.10(g);
(b) with respect to any REMIC II Regular Interest for any Distribution
Date, have the meaning assigned thereto in Section 2.12(g); and
(c) with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date, have the meaning assigned thereto
in Section 2.14(g).
"Custodian" shall mean a Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files.
"Cut-off Date" shall mean, individually and collectively, the respective
Due Dates for the Original Mortgage Loans in November 2000.
"Cut-off Date Principal Balance" shall mean, with respect to any Original
Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of its
Due Date in November 2000, after application of all payments of principal due on
or before such date, whether or not received.
"Debt Service Coverage Ratio" shall mean, with respect to any Mortgage
Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-Collateralized Mortgage Loan,
the ratio of (x) the Net Operating Income (before payment of any debt service on
such Mortgage Loan) generated by the related Mortgaged Property during the most
recent period of not more than 12 months or less than three-months for which Net
Operating Income can be
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calculated (annualized if such period is less than 12 months), to (y) twelve
times the amount of the Monthly Payment in effect for such Mortgage Loan as of
such date of determination.
"Default Charges" shall mean Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Mortgage
Loan or REO Mortgage Loan.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (exclusive, if applicable, of Post-ARD Additional Interest)
in excess of interest accrued on the principal balance of such Mortgage Loan (or
REO Mortgage Loan) at the related Mortgage Rate, such excess interest arising
out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan" shall mean a Specially Serviced Mortgage Loan (i)
that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment, if any) or is delinquent 30 days or more in
respect of its Balloon Payment, in either case with such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note and without regard to any acceleration of payments
under the related Mortgage and Mortgage Note, or (ii) as to which the Special
Servicer has, by written notice to the related Borrower, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note.
"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Definitive Certificate" shall have the meaning assigned thereto in Section
5.03(a).
"Deleted Mortgage Loan" shall mean a Mortgage Loan which is repurchased
from the Trust or replaced with one or more Replacement Mortgage Loans, in
either case as contemplated by Section 2.03.
"Delinquent Loan Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable, and in any event, setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report were (i) delinquent 30-59 days, (ii) delinquent 60-89 days, (iii)
delinquent 90 days or more, (iv) current but specially serviced, or (v) in
foreclosure but as to which the related Mortgaged Property has not become an REO
Property.
"Depositor" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Depositary" shall mean The Depository Trust Company, or any successor
depositary hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depositary for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depositary shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial
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Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depositary Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
"Designated Sub-Servicer" shall mean any Sub-Servicer set forth on Exhibit
O hereto and any successor thereto under the related Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement" shall mean any Sub-Servicing Agreement
between a Designated Sub-Servicer and the Master Servicer.
"Determination Date" shall mean, with respect to any calendar month,
commencing in December 2000, the fourth day of such month (or, if such fourth
day is not a Business Day, the immediately preceding Business Day). Each
Determination Date will relate to the Distribution Date in the same calendar
month.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than the sale of REO Property pursuant to Section
3.18(d)), the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate" shall have the meaning assigned thereto in Section 4.01(d).
"Disqualified Organization" shall mean any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Trustee, based upon an Opinion of Counsel
delivered to the Trustee to the effect that the holding of an Ownership Interest
in a Class R Certificate by such Person may cause the Trust or any Person having
an Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
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"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b), in trust for
the Certificateholders, which shall be entitled "Wells Fargo Bank Minnesota,
N.A. [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1, Distribution Account".
"Distribution Date" shall mean, with respect to any calendar month,
commencing in December 2000, the later of (i) the tenth calendar day of such
month (or, if such tenth calendar day is not a Business Day, the Business Day
immediately following) and (ii) the fourth Business Day following the
Determination Date occurring in such month.
"DLJSC" shall mean Donaldson, Lufkin & Jenrette Securities Corporation or
its successor in interest.
"Document Defect" shall mean, with respect to any Mortgage Loan, that any
document required to be part of the related Mortgage File has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Due Date" shall mean with respect to any Mortgage Loan (and any successor
REO Mortgage Loan), the day of the month set forth in the related Mortgage Note
on which each Monthly Payment on such Mortgage Loan is scheduled to be first
due.
"EDGAR" shall mean the Electronic Data Gathering, Analysis, and Retrieval
System of the Commission, which is the computer system for the receipt,
acceptance, review and dissemination of documents submitted to the Commission in
electronic format.
"Eligible Account" shall mean any of (i) an account maintained with a
federal or state chartered depositary institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated no less than "Aa2" by Moody's
and "AA" by Fitch (if the deposits are to be held in the account for more than
30 days), or the short-term deposit or short-term unsecured debt obligations of
which (or of such institution's parent holding company) are rated no less than
"P-1" by Moody's and "F-1+" by Fitch (if the deposits are to be held in the
account for 30 days or less), in any event at any time funds are on deposit
therein, or (ii) a segregated trust account maintained with a federal or state
chartered depositary institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depositary institution or
trust company is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 CFR ss. 9.10(b), and which, in either case,
has a combined capital and surplus of at least $50,000,000 and is subject to
supervision or examination by federal or state authority, (iii) an account or
accounts maintained with PNC Bank, National Association ("PNC") so long as PNC's
long-term unsecured debt rating shall be at least "A1" from Moody's and "A+"
from Fitch and PNC's short-term deposit or short-term unsecured debt rating
shall be at least F-1+ from Fitch, or (iv) any other account that is acceptable
to the Rating Agencies (as evidenced by written confirmation to the Trustee from
each Rating Agency that the use of such account would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates).
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"Environmental Insurance Policy" shall mean with respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions that is maintained from time to time in
respect of such Mortgaged Property or REO Property, as the case may be, for the
benefit of, among others, the Trustee on behalf of the Certificateholders.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment" shall mean any payment received by the Master Servicer or
the Special Servicer for the account of any Borrower for application toward the
payment of real estate taxes, assessments, insurance premiums (including with
respect to any Environmental Insurance Policy), ground rents (if applicable) and
similar items in respect of the related Mortgaged Property.
"Event of Default" shall have the meaning assigned thereto in Section
7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially Serviced
Mortgage Loan or REO Property, over (b) the sum of (i) the amount needed to pay
off the Mortgage Loan or related REO Mortgage Loan in full and (ii) all unpaid
Advance Interest on any related Advances.
"Excess Liquidation Proceeds Account" shall mean the segregated account
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "Wells Fargo Bank Minnesota,
N.A. [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1, Excess Liquidation Proceeds
Account".
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fannie Mae" shall mean the Federal National Mortgage
Association or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date" shall mean the final Distribution Date on which
any distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination" shall mean a determination made by the
Special Servicer, in its reasonable, good faith judgment, with respect to any
Mortgage Loan or REO Property (other than a Mortgage Loan that is paid in full
and other than a Mortgage Loan or REO Property, as the case may be, that is
repurchased or replaced by Union Capital pursuant to the Union Capital
Agreement, repurchased or replaced by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement or purchased by the Master Servicer,
the Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
"Financial File" shall mean a report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
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commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable. Notwithstanding anything to the contrary contained
herein, the obligation of the Master Servicer and the Special Servicer to
deliver the Financial File as part of the CMSA Investor Reporting Package shall
be subject to Section 3.12(h).
"Fiscal Agent" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned thereto in Section
8.13.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the other parties hereto, and specific ratings of Fitch, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than such references to "highest applicable rating category") shall, in the case
of Fitch, be deemed to refer to such applicable rating category of Fitch,
without regard to any plus or minus or other comparable rating qualification.
"Freddie Mac" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Grantor Trust" shall mean a grantor trust as defined under Subpart E of
Part 1 of Subchapter J of the Code.
"Grantor Trust D" shall mean the Grantor Trust designated as such in
Section 2.15(b).
"Grantor Trust E" shall mean the Grantor Trust designated as such in
Section 2.15(a).
"Grantor Trust Pool" shall mean either of Grantor Trust D, Grantor Trust E
or Grantor Trust R.
"Grantor Trust R" shall mean the Grantor Trust designated as such in
Section 2.15(c).
"Ground Lease" shall mean the ground lease pursuant to which any Borrower
holds a leasehold interest in the related Mortgaged Property.
"Group Environmental Insurance Policy" shall mean an Environmental
Insurance Policy that is maintained from time to time in respect of more than
one Mortgaged Property or REO Property.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
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"Historical Liquidation Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Historical Liquidation Report" available as of
the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable, and in any event, setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, (ii)
the amount of Realized Losses occurring during such Collection Period and
historically, and (iii) on an itemized basis, all Advance Interest and other
Additional Trust Fund Expenses paid during such Collection Period, set forth on
a Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis.
"Historical Loan Modification Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Loan Modification Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Loan Modification
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable, and in
any event, setting forth, among other things, those Mortgage Loans which, as of
the close of business on the Determination Date immediately preceding the
preparation of such report, have been modified pursuant to this Agreement (i)
during the Collection Period ending on such Determination Date and (ii) since
the Closing Date, with a description of the original and the revised terms
thereof.
"Holiday Inn Orlando Closing Fee" shall mean, with respect to the Holiday
Inn Orlando Mortgage Loan, the $120,000 fee payable under Section 2.2 of the
related loan agreement at the earlier of maturity and repayment of such Mortgage
Loan.
"Holiday Inn Orlando Mortgage Loan" shall mean the Mortgage Loan secured by
a Mortgage on the Mortgaged Property identified on the Mortgage Loan Schedule as
the Holiday Inn Orlando.
"Independent" shall mean, when used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Controlling Class
Representative and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Special Sub-Servicer, the Trustee, any Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Special Sub-Servicer, the Trustee, any Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Special Sub-Servicer, the Trustee, any Fiscal Agent, the
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Controlling Class Representative or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, such Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee, such Fiscal Agent, the
Controlling Class Representative or any Affiliate thereof, as the case may be.
"Independent Contractor" shall mean any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, delivered to the Trustee), so long as the Trust does not receive or
derive any income from such Person and provided that the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Initial Pool Balance" shall mean the aggregate Cut-off Date Principal
Balance of all the Original Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
Section 2.03(b).
"Institutional Accredited Investor" shall mean an "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy, earthquake insurance policy, Environmental Insurance Policy, business
interruption insurance policy or other insurance policy that is maintained from
time to time in respect of such Mortgage Loan (or the related Mortgaged
Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any Insurance Policy,
to the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the related Borrower or any
other third-party in accordance with applicable law and/or the terms and
conditions of the related Mortgage Note and Mortgage or any document to which
the related Mortgage Note and Mortgage are subject.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any Interest
Accrual Period, have the meaning assigned thereto in Section 2.10(g);
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(b) with respect to any REMIC II Regular Interest, for any Interest
Accrual Period, have the meaning assigned thereto in Section 2.12(g); and
(c) with respect to any Class of REMIC III Regular Interest
Certificates, for any Interest Accrual Period, have the meaning assigned
thereto in Section 2.14(g).
"Interest Accrual Basis" shall mean the basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest or any Class of REMIC III Regular Interest Certificates, consisting of
one of the following: (i) a 30/360 Basis; (ii) an Actual/360 Basis; or (iii) an
Actual/365 Basis.
"Interest Accrual Period" shall mean, with respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Only Certificates" shall have the meaning assigned thereto in
Section 2.09(h).
"Interest Reserve Account" shall mean the segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for the
Certificateholders, which shall be entitled "Wells Fargo Bank Minnesota, N.A.
[or the name of any successor Trustee], as Trustee, in trust for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Interest Reserve Account".
"Interest Reserve Amount" shall mean, with respect to each Interest Reserve
Loan and each Distribution Date that occurs during the month of February of 200l
and each year thereafter or during the month of January of 200l and each year
thereafter that is not a leap year, an amount equal to one-day's interest at the
related Net Mortgage Rate on the Stated Principal Balance of such Interest
Reserve Loan as of the Due Date in the month in which such Distribution Date
occurs (but prior to the application of any amounts due on such Due Date), to
the extent that a Monthly Payment is received in respect thereof for such Due
Date on or before the related Master Servicer Remittance Date or a P&I Advance
is made in respect thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan" shall mean any Actual/360 Mortgage Loan (or
successor REO Mortgage Loan).
"Interested Person" shall mean any party hereto, any Mortgage Loan Seller,
Union Capital, any Certificateholder, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in Section
3.06(a).
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended.
"IRS" shall mean the Internal Revenue Service or any successor.
"Issue Price" shall mean, with respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
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"KCCI" shall have the meaning assigned thereto in the Preliminary Statement
to this Agreement.
"KeyBank" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"KeyBank Mortgage Loan Purchase Agreement" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Late Collections" shall mean: (a) with respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, on a Due Date during or prior to November 2000 or, in the
case of the Pembroke Mortgage Loan, on a Due Date during or prior to the
Collection Period of receipt, and not previously recovered; and (b) with respect
to any REO Mortgage Loan, all amounts received in connection with the related
REO Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan or late collections of the principal
and/or interest portions of an Assumed Monthly Payment in respect of such REO
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period
or, in the case of the Pembroke Mortgage Loan, on a Due Date during or prior to
the Collection Period of receipt, and not previously recovered.
"Latest Possible Maturity Date" shall mean, with respect to any REMIC I
Regular Interest, REMIC II Regular Interest or Class of REMIC III Regular
Interest Certificates, the date designated as the "latest possible maturity
date" thereof solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii).
"Letter of Credit" shall mean, with respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event" shall mean: (a) with respect to any Mortgage Loan, any
of the following events--(i) such Mortgage Loan is paid in full, (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan, (iii) such
Mortgage Loan is repurchased or replaced by Union Capital pursuant to the Union
Capital Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement, in each case as contemplated by Section 2.03, or (iv)
such Mortgage Loan is purchased by the Master Servicer, the Special Servicer or
any Controlling Class Certificateholder(s) pursuant to Section 3.18 or Section
9.01; and (b) with respect to any REO Property (and the related REO Mortgage
Loan), any of the following events--(i) a Final Recovery Determination is made
with respect to such REO Property; or (ii) such REO Property is purchased by the
Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 3.18 or Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in
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connection with the liquidation of any Specially Serviced Mortgage Loan or REO
Property pursuant to Section 3.09 or 3.18 (including legal fees and expenses,
committee or referee fees and, if applicable, brokerage commissions and
conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property that is purchased by the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder(s) pursuant to Section 3.18 or
Section 9.01 or that is repurchased or replaced by Union Capital pursuant to the
Union Capital Agreement or by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement), the fee designated as such and payable to the
Special Servicer pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Borrower in accordance with applicable law and/or the terms and
conditions of the related Mortgage Note and Mortgage; (ii) the realization upon
any deficiency judgment obtained against a Borrower; (iii) the purchase of a
Defaulted Mortgage Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(b) or by the Master Servicer or the Special Servicer pursuant to
Section 3.18(c) or any other sale thereof pursuant to Section 3.18(d); (iv) the
repurchase of a Mortgage Loan by Union Capital pursuant to the Union Capital
Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement; (v) the substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan by Union Capital pursuant to the Union Capital
Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement (such cash amounts being any Substitution Shortfall Amounts);
or (vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer,
the Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01.
"Loan Periodic Update File" shall mean the monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "CMSA Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Periodic Update File" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable, and the Trustee.
"Loan Setup File" shall mean the report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Loan Setup File" available as of the Closing
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Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable, and the Trustee.
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage Loan, as of
any date of determination, and without regard to the cross-collateralization in
the case of any Cross-Collateralized Mortgage Loan, a fraction, expressed as a
percentage, the numerator of which is the then current principal amount of such
Mortgage Loan, and the denominator of which is the Appraised Value of the
related Mortgaged Property.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any REMIC I Regular Interest, for any Distribution
Date, the total amount of all Unfunded Principal Balance Reductions, if
any, incurred by (but not reimbursed to) REMIC II with respect to such
REMIC I Regular Interest on all prior Distribution Dates, if any;
(b) with respect to any REMIC II Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC III with
respect to such REMIC II Regular Interest on all prior Distribution Dates,
if any; and
(c) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders of such
Class of Certificates on all prior Distribution Dates, if any.
"Majority Controlling Class Certificateholder" shall mean, as of any date
of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class(es) of
Principal Balance Certificates that constitute(s) the Controlling Class as of
such date of determination.
"Master Servicer" shall mean KCCI, in its capacity as master servicer
hereunder, or any successor master servicer appointed as provided herein.
"Master Servicer Remittance Amount" shall mean, with respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Collection Account as of 11:00 a.m., New York City time, on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period or, in the case of the Pembroke Mortgage Loan, following the
end of the Collection Period next following the related Collection Period, (ii)
any payments of principal (including Principal Prepayments) and interest
(including Post-ARD Additional Interest), Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received after the end of the related
Collection Period, (iii) any Prepayment Premiums and/or Yield Maintenance
Charges received after the end of the related Collection Period, (iv) any Excess
Liquidation Proceeds, (v) any amounts payable or reimbursable to any Person from
the Collection Account pursuant to clauses (ii) through (xix) of Section
3.05(a), and (vi) any amounts deposited in the Collection Account in error;
provided that the Master Servicer Remittance Amount for the Master Servicer
Remittance Date that occurs in the same calendar month as the anticipated Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
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"Master Servicer Remittance Date" shall mean the Business Day preceding
each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Mortgage Loan and
REO Mortgage Loan, the fee designated as such and payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each Mortgage Loan
and REO Mortgage Loan, the rate per annum designated as the "Servicing and
Trustee Fees" in the Mortgage Loan Schedule, minus 0.0017%.
"Material Breach" shall mean any Breach that materially and adversely
affects the interests of the Certificateholders, or any of them, with respect to
the affected Mortgage Loan, including a material and adverse effect on any of
the distributions payable with respect to any of the Certificates or on the
value of such Certificates. Without limiting the generality of the foregoing, it
is agreed by all parties that any Breach of the representation and warranty set
forth in Paragraph 50 of Exhibit C of the KeyBank Mortgage Loan Purchase
Agreement, relating to environmental escrows with respect to the Banana Republic
Loan, shall constitute a Material Breach; provided that such Material Breach may
be cured by a payment in full by KeyBank, within the applicable Initial
Resolution Period and any applicable Extended Resolution Period, of the
shortfall in the subject environmental escrow that gave rise to such Breach.
"Material Document Defect" shall mean any Document Defect that materially
and adversely affects the interests of the Certificateholders, or any of them,
with respect to the affected Mortgage Loan, including a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates. Without limiting the
generality of the foregoing, it is agreed by all parties that the absence of an
original Mortgage Note, an original or a copy of a Mortgage (with or without
evidence of recording thereon) or an original or a copy of a lender's title
insurance policy from a Mortgage File (without the presence of any factor, such
as the presence of a lost note affidavit and indemnity in the case of a missing
Mortgage Note or the presence of a pro forma title policy or a commitment for
title insurance "marked-up" at the closing of the subject mortgage loan in the
case of a missing lender's title insurance policy, that in the Trustee's
reasonable discretion reasonably mitigates such absence), shall be a Material
Document Defect.
"McDonald" shall mean McDonald Investments Inc. or its successor in
interest.
"Memorandum" shall mean the final Private Placement Memorandum dated
October 27, 2000, relating to certain classes of the Non-Registered Certificates
delivered by the Depositor to DLJSC as of the Closing Date.
"Midland" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
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(a) materially affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to,
bringing Monthly Payments current with respect to such Mortgage
Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute
real property collateral with a fair market value (as is), that
is not less than the fair market value (as is) of the property to
be released, as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Borrower and upon
which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan
or materially reduces the likelihood of timely payment of amounts
due thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan as of any
Due Date, the scheduled monthly payment (or, in the case of an ARD Loan after
its Anticipated Repayment Date, the minimum required monthly payment) of
principal and/or interest on such Mortgage Loan, including any Balloon Payment,
that is actually payable by the related Borrower from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy, insolvency or similar proceeding involving the
related Borrower or by reason of a modification, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer pursuant to Section
3.20); provided that the Monthly Payment due in respect of any ARD Loan after
its Anticipated Repayment Date shall not include Post-ARD Additional Interest.
"Moody's" shall mean Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Moody's Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust, deed to
secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, the following documents on a collective basis:
(i) the original executed Mortgage Note, endorsed (either on the face
thereof or pursuant to a separate allonge) "Pay to the order of
Wells Fargo Bank Minnesota, N.A., as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1, without
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recourse" or in blank, and further showing a complete, unbroken
chain of endorsement from the originator (if such originator is
other than the related Mortgage Loan Seller); or alternatively,
if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in
clause (iv) of this definition, in each case (unless the
particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case
(unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment of the Mortgage, in favor of
Wells Fargo, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, in recordable form (except for
any missing recording information with respect to such Mortgage);
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage),
in favor of Wells Fargo, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, in recordable form (except for
any missing recording information with respect to such Assignment
of Leases);
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances
where the terms or provisions of the Mortgage or Mortgage Note
have been modified or the Mortgage Loan has been assumed, in each
case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified or assumed is a
recordable document;
(vii) the original or a copy of the policy of lender's title insurance
or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance;
(viii) filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any assignee
prior to the Trustee (but only to the extent the related Mortgage
Loan Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, in connection with such UCC Financing
Statements, an original UCC-2 or UCC-3, as appropriate, in favor
of Wells Fargo, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1;
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(ix) the original or a copy of any environmental indemnity agreement
and any Environmental Insurance Policy relating solely to such
Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
property management agreement, Ground Lease, Ground Lease
estoppels, intercreditor agreement, cash management agreement
and/or lock-box agreement relating to such Mortgage Loan; and
(xi) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement
agreements) relating to, evidencing or constituting Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received.
"Mortgage Loan" shall mean each of the Original Mortgage Loans and
Replacement Mortgage Loans that are from time to time held in the Trust Fund. As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File. As
used herein, the term "Mortgage Loan" includes a mortgage loan that has been
wholly or partially defeased.
"Mortgage Loan Purchase Agreement" shall mean any of the Column Mortgage
Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement and the
PMCF Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the three schedules of
Mortgage Loans attached hereto as Exhibit B-1A, Exhibit B-1B and Exhibit B-1C,
respectively, as any such schedule may be amended from time to time in
accordance with this Agreement. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (or, if a Mortgage Loan currently
requires only payments of interest, on the first Due Date after
amortization begins);
(v) the Mortgage Rate as of the Closing Date;
(vi) the original and remaining term to stated maturity ;
(vii) in the case of a Balloon Mortgage Loan, the original and
remaining amortization term;
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(viii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, the other Mortgage Loans contained in the
related Cross-Collateralized Group;
(ix) the Anticipated Repayment Date for each ARD Loan;
(x) whether such Mortgage Loan provides for defeasance and, if so,
the period during which defeasance may occur;
(xi) whether the Mortgage Loan is secured by a fee simple interest in
the Mortgaged Property; by the Borrower's leasehold interest, and
a fee simple interest, in the Mortgaged Property; or solely by a
leasehold interest in the Mortgaged Property;
(xii) the name of the Mortgage Loan Seller;
(xiii) the Interest Accrual Basis; and
(xiv) the Administrative Fee Rate.
"Mortgage Loan Seller" shall mean any of Column, KeyBank and PMCF.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any successor REO
Mortgage Loans, collectively, as of any particular date of determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, as such rate
may be modified in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by the Master Servicer or the
Special Servicer in accordance with Section 3.20. In the case of each of the ARD
Loans, the related Mortgage Rate will be subject to increase in accordance with
the related Mortgage Note if the particular Mortgage Loan is not paid in full by
its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and collectively, as the
context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if
and when the context may require, "Mortgaged Property" shall mean, collectively,
all the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee" shall mean the holder of legal title to any Mortgage Loan,
together with any third parties through which such holder takes actions with
respect to such Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the
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related Collection Period, exceeds (b) the amount of the Compensating Interest
Payment remitted by the Master Servicer pursuant to Section 3.19(a) on the
Master Servicer Remittance Date related to such Distribution Date.
"Net Assumption Application Fee" shall have the meaning assigned thereto in
Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto in Section
3.08.
"Net Default Charges" shall mean:
(a) with respect to any Performing Mortgage Loan, the Default
Charges referred to in clause third of Section 3.26(a), which are
payable to the Master Servicer as Additional Master Servicing
Compensation; and
(b) with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan, the Default Charges referred to in clause third of
Section 3.26(b), which are payable to the Special Servicer as
Additional Special Servicing Compensation.
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period in
connection with the investment of funds held in such Investment Account for the
benefit of the Master Servicer or the Special Servicer, as applicable, in
accordance with Section 3.06, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds for the benefit of the Master Servicer or the Special Servicer, as
applicable, in accordance with Section 3.06 (other than losses of what would
otherwise have constituted interest or other income earned on such funds).
"Net Investment Loss" shall mean, with respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
funds held in such Investment Account for the benefit of the Master Servicer or
the Special Servicer, as applicable, in accordance with Section 3.06 (other than
losses of what would otherwise have constituted interest or other income earned
on such funds), exceeds the aggregate of all interest and other income realized
during such Collection Period in connection with the investment of such funds
for the benefit of the Master Servicer or the Special Servicer, as applicable,
in accordance with Section 3.06; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depositary institution or trust company that holds such Investment
Account, so long as such depositary institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account both at the time
such investment was made and also as of a date not more than 30 days prior to
the date of such loss.
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses incurred with
respect thereto and all related Servicing Advances reimbursable therefrom.
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"Net Mortgage Rate" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), the rate per annum equal to the Mortgage Rate
minus the Administrative Fee Rate.
"Net Operating Income" shall mean, with respect to any Mortgaged Property,
the net operating income derived from such Mortgaged Property for any specified
period, calculated in accordance with Exhibit K.
"New Lease" shall mean any lease of an REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Certificateholders, if the Special Servicer has the
right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet" shall mean a report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Mortgage
Loans, and by the Master Servicer with respect to all other Mortgage Loans,
substantially in the form of, and containing the information called for in, the
downloadable form of the "NOI Adjustment Worksheet" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "NOI Adjustment Worksheet"
available as of the Closing Date on the CMSA Website, is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean as evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Mortgage Loan that, as determined by the Master Servicer or, if applicable,
the Trustee or any Fiscal Agent, in its reasonable, good faith judgment, based
on at least an Appraisal conducted within the twelve months preceding any such
determination, will not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on
or in respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance" shall mean as evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance previously made or to be made in respect of a Mortgage Loan or
REO Property that, as determined by the Master Servicer, the Special Servicer
or, if applicable, the Trustee or any Fiscal Agent, in its reasonable, good
faith judgment, based on at least an Appraisal conducted within the twelve
months preceding any such determination, will not be ultimately recoverable from
late payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
or any other recovery on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate" shall mean any Certificate that has not been
subject to registration under the Securities Act. As of the Closing Date, the
Class S, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class
C, Class D, Class E and Class R Certificates will constitute Non-Registered
Certificates.
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"Non-United States Person" shall mean any Person other than a United States
Person.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer or a Responsible Officer
of the Trustee or any Fiscal Agent, as the case may be.
"Operating Statement Analysis Report" shall have the meaning assigned
thereto in Section 3.12(b).
"Opinion of Counsel" shall mean a written opinion of counsel (which
counsel, in the case of any such opinion of counsel relating to the taxation of
the Trust Fund or any portion thereof or the status of any REMIC Pool as a REMIC
or the status of any Grantor Trust Pool as a Grantor Trust for taxation
purposes, shall be Independent of the Depositor, each Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Special Sub-Servicer, the Trustee and
any Fiscal Agent, but which may act as counsel to such Person) acceptable to and
delivered to the addressee(s) thereof and which Opinion of Counsel, except as
provided herein, shall not be at the expense of the Trustee.
"Original Column Mortgage Loans" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"Original KeyBank Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Original Mortgage Loans" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Original PMCF Mortgage Loans" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor thereto.
"Ownership Interest" shall mean, in the case of any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, with respect to any Mortgage Loan or REO Mortgage
Loan, any advance made by the Master Servicer, the Trustee or any Fiscal Agent
pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day preceding each Distribution
Date.
"Pass-Through Rate" shall mean the per annum rate at which interest accrues
in respect of any Class of REMIC III Regular Interest Certificates during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.14(f).
"Pembroke Mortgage Loan" shall mean the Mortgage Loan secured by a Mortgage
on (and any successor REO Mortgage Loan relating to) the Mortgaged Property
identified on the Mortgage Loan Schedule as Pembroke Office Park.
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"Percentage Interest" shall mean: (a) with respect to any REMIC III Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Class Principal Balance or Class
Notional Amount, as the case may be, of the relevant Class as of the Closing
Date; and (b) with respect to a Class D, Class E or Class R Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Performing Mortgage Loan" shall mean any Corrected Mortgage Loan and any
Mortgage Loan as to which a Servicing Transfer Event has not occurred.
"Permitted Investments" shall mean any one or more of the following
obligations or securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that each such
obligation is backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category
of each of Moody's and Fitch;
(iii) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt obligations
of such bank or trust company are at the time of investment rated
in the highest short-term debt rating category of each of Moody's
and Fitch;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof (or of any corporation
not so incorporated, provided that the commercial paper is United
States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in
the highest short-term debt rating category of each of Moody's
and Fitch;
(v) units of money market funds which maintain a constant net asset
value, provided that such units of money market funds are rated
in the highest applicable rating category of each of Moody's and
Fitch; or
(vi) any other obligation or security that is acceptable to the Rating
Agencies and will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to
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maturity at par of the underlying obligations, (B) no investment described
hereunder may be purchased at a price greater than par if such investment may be
prepaid or called at a price less than its purchase price prior to stated
maturity, (C) no investment described hereunder may be sold prior to stated
maturity if such sale would result in a loss of principal on the instrument or a
tax on "prohibited transactions" under Section 860F of the Code and (D) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating; and provided, further, that each investment
described hereunder must have (X) a predetermined fixed amount of principal due
at maturity (that cannot vary or change), (Y) an original maturity of not more
than 365 days and a remaining maturity of not more than 30 days and (Z) except
in the case of a Permitted Investment described in clause (v) of this
definition, a fixed interest rate or an interest rate that is tied to a single
interest rate index plus a single fixed spread; and provided, further, that each
investment described hereunder must be a "cash flow investment" (within the
meaning of the REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R Certificate
other than either a Disqualified Organization or a Non-United States Person;
provided, however, that if a Transferee is classified as a partnership under the
Code, such Transferee shall only be a Permitted Transferee if all of its
beneficial owners are United States Persons and the governing documents of the
Transferee prohibit a transfer of any interest in the Transferee to any
Non-United States Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of either (i) Chapter 5 of Part II of the
Fannie Mae Multifamily Guide, as amended from time to time, or (ii) the American
Society for Testing and Materials.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Class R Certificateholder" shall mean, as to any taxable year of
any REMIC Pool, the Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates.
"PMCC" shall have the meaning assigned thereto in the Preliminary Statement
to this Agreement.
"PMCF" shall have the meaning assigned thereto in the Preliminary Statement
to this Agreement.
"PMCF Mortgage Loan Purchase Agreement" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Post-ARD Additional Interest" shall mean, with respect to any ARD Loan
after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Loan at the Post-ARD Additional Interest Rate (the payment
of which interest shall, under the terms of such Mortgage Loan, be deferred
until the principal balance of such Mortgage Loan has been paid in full),
together with all interest, if any, accrued at the related Mortgage Rate on such
deferred interest.
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"Post-ARD Additional Interest Rate" shall mean, with respect to any ARD
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of determining the accrual
of original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests, the REMIC II Regular Interests and the
Certificates for federal income tax purposes, the assumptions that each ARD Loan
is paid in its entirety on its Anticipated Prepayment Date and that no Mortgage
Loan is otherwise voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any Mortgage Loan
(other than the Pembroke Mortgage Loan) that was subject to a Principal
Prepayment in full or in part made after its Due Date in any Collection Period,
any payment of interest (net of related Master Servicing Fees and, further, net
of any portion of such interest that represents Default Interest or Post-ARD
Additional Interest) actually collected from the related Borrower and intended
to cover the period from and after such Due Date to, but not including, the date
of prepayment (exclusive, however, of any related Prepayment Premium or Yield
Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
prior to its Due Date in any Collection Period, the amount of interest, to the
extent not collected from the related Borrower (without regard to any Prepayment
Premium or Yield Maintenance Charge that may have been collected), that would
have accrued on the amount of such Principal Prepayment during the period from
the date of prepayment to, but not including, such Due Date (less the amount of
related Master Servicing Fees and, if applicable, exclusive of Default Interest
and Post-ARD Additional Interest); and (b) with respect to the Pembroke Mortgage
Loan, if it is ever subject to a Principal Prepayment in full or in part, the
amount of interest, to the extent not collected from the related Borrower
(without regard to any Prepayment Premium or Yield Maintenance Charge that may
have been collected), that would have accrued on the amount of such Principal
Prepayment during the period from the date of prepayment to, but not including,
the related Due Date in the Collection Period next following the Collection
Period of prepayment (less the amount of related Master Servicing Fees and, if
applicable, exclusive of Default Interest and Post-ARD Additional Interest).
"Prepayment Premium" shall mean, with respect to any Mortgage Loan, any
premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan or any successor REO Mortgage
Loan, to the extent such premium, fee or other additional amount is calculated
as a percentage of the principal amount being prepaid or as a specified amount
(other than a Yield Maintenance Minimum Amount).
"Primary Servicing Office" shall mean the office of the Master Servicer,
the Special Servicer or the Special Sub-Servicer, as the context may require,
that is primarily responsible for such party's servicing obligations hereunder
or, in the case of the Special Sub-Servicer, under the Special Sub-Servicing
Agreement.
"Prime Rate" shall mean the "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Trustee, in its sole discretion, shall select an equivalent
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publication that publishes such "prime rate"; and if such "prime rate" is no
longer generally published or is limited, regulated or administered by a
governmental or quasi- governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any of the Certificates
designated as such in Section 2.09(f).
"Principal Distribution Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any
Distribution Date, an amount equal to that portion, if any, of the
Total Principal Distribution Amount for such Distribution Date that is
attributable to each and every Mortgage Loan and/or REO Mortgage Loan,
as the case may be, that relates to such REMIC I Regular Interest; and
(b) with respect to any Class of REMIC III Regular Interest
Certificates (and, accordingly, with respect to that Class's
Corresponding REMIC II Regular Interest) for any Distribution Date, an
amount equal to that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date that is allocable to
such Class of Certificates as provided below in this definition.
For purposes of the foregoing, for so long as the Class A-1A and/or Class
A-1B Certificates remain outstanding, the Total Principal Distribution Amount
for each Distribution Date shall be allocated to the Class A-1A and A-1B
Certificates, up to the lesser of (i) the aggregate of the Class Principal
Balances of the Class A-1A and A-1B Certificates outstanding immediately prior
to such Distribution Date and (ii) the entire such Total Principal Distribution
Amount. The portion of the Total Principal Distribution Amount for each
Distribution Date that is so allocable to the Class A-1A and A-1B Certificates
shall, in turn, be allocated as between those two Classes of Certificates as
follows: (i) prior to the Senior Principal Distribution Cross-Over Date (or, if
there is no Senior Principal Distribution Cross-Over Date, prior to the Final
Distribution Date), first, to the Class A-1A Certificates, up to the Class
Principal Balance thereof outstanding immediately prior to the subject
Distribution Date, and then, to the Class A-1B Certificates; and (ii) on and
after the Senior Principal Distribution Cross-Over Date (and, in any event, on
the Final Distribution Date), to the Class A-1A Certificates and the Class A-1B
Certificates on a pro rata basis in accordance with the respective Class
Principal Balances thereof outstanding immediately prior to the subject
Distribution Date. After the Class Principal Balances of the Class A-1A and A-1B
Certificates have been reduced to zero, the Total Principal Distribution Amount
for each Distribution Date (net of any portion thereof that may have been
allocated to the Class A-1A and A-1B Certificates in retirement thereof pursuant
to the prior two sentences) shall be allocated among the respective Classes of
the Subordinate Principal Balance Certificates, sequentially in the following
order and, in the case of each such Class of Subordinate Principal Balance
Certificates, up to the lesser of (i) the Class Principal Balance of such Class
of Certificates outstanding immediately prior to such Distribution Date and (ii)
the remaining unallocated portion of the Total Principal Distribution Amount for
such Distribution Date: first, to the Class A-2 Certificates; second, to the
Class A-3 Certificates; third, to the Class A-4 Certificates; fourth, to the
Class B-1 Certificates; fifth, to the Class B-2 Certificates; sixth, to the
Class B-3 Certificates; seventh, to the Class B-4 Certificates; eighth, to the
Class B-5 Certificates; ninth, to the Class B-6 Certificates; tenth, to the
Class B-7 Certificates;
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eleventh, to the Class B-8 Certificates; twelfth, to the Class B-9 Certificates;
and thirteenth, to the Class C Certificates.
"Principal Prepayment" shall mean any voluntary payment of principal made
by the Borrower on a Mortgage Loan that is received in advance of its scheduled
Due Date and that is not accompanied by an amount of interest (without regard to
any Prepayment Premium, Yield Maintenance Charge and/or Post-ARD Additional
Interest that may have been collected) representing scheduled interest due on
any date or dates in any month or months subsequent to the month of prepayment.
"Property File" shall mean the monthly report substantially in the form of,
and containing the information called for, in the downloadable form of the "CMSA
Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable. Notwithstanding anything to the contrary contained
herein, the obligation of the Master Servicer and Special Servicer to deliver
the Property File as part of the CMSA Investor Reporting Package shall be
subject to Section 3.12(h).
"Proposed Plan" shall have the meaning assigned thereto in Section 3.17(a).
"Prospectus" shall mean the Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement" shall mean that certain prospectus supplement dated
October 27, 2000, relating to the Registered Certificates, that is a supplement
to the Base Prospectus.
"Prudential" shall mean Prudential Securities Incorporated or its successor
in interest.
"PTCE" shall mean Prohibited Transaction Class Exemption.
"PTE" shall mean Prohibited Transaction Exemption.
"Purchase Price" shall mean, with respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate (exclusive of any
portion of such interest that represents Post-ARD Additional Interest) to, but
not including, the Due Date occurring in the Collection Period during which the
applicable purchase or repurchase occurs (or, in the case of the Pembroke
Mortgage Loan, in the first Collection Period thereafter), (c) all related
unreimbursed Servicing Advances, (d) all accrued and unpaid Advance Interest
with respect to any related Advances, and (e) solely in the case of a repurchase
or substitution by Union Capital pursuant to the Union Capital Agreement or by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
(i) all related Special Servicing Fees and other related Additional Trust Fund
Expenses, whether paid or then owning, and (ii) to the extent not otherwise
included in the amount described in clause (c) of this definition, any costs and
expenses incurred by the Master Servicer, the Special Servicer or the Trustee
(on behalf of the Trust) in enforcing the obligation of such Person to
repurchase or replace such Mortgage Loan.
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"Qualified Appraiser" shall mean, in connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer" shall mean a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan" shall mean, in connection with the
replacement of a Deleted Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a fixed rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has the
same Due Date as, and a grace period for delinquent Monthly Payments that is no
longer than, the Due Date and grace period, respectively, of the Deleted
Mortgage Loan; (iv) is accruing interest on the same Interest Accrual Basis as
the Deleted Mortgage Loan; (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Deleted
Mortgage Loan and, in any event, has a Stated Maturity Date not later than two
years prior to the Rated Final Distribution Date; (vi) has a then current
Loan-to-Value Ratio not higher than, and a then current Debt Service Coverage
Ratio not lower than, the Loan-to-Value Ratio and Debt Service Coverage Ratio,
respectively, of the Deleted Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Deleted Mortgage Loan, (viii)
will comply (except in a manner that would not be adverse to the interests of
the Certificateholders (as a collective whole) in or with respect to such
mortgage loan), as of the date of substitution, with all of the representations
relating to the Deleted Mortgage Loan set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement and, in the case of a Union Capital
Mortgage Loan, the Union Capital Agreement; (ix) has a Phase I Environmental
Assessment relating to the related Mortgaged Property in its Servicing File,
which Phase I Environmental Assessment will evidence that there is no material
adverse environmental condition or circumstance at the related Mortgaged
Property for which further remedial action may be required under applicable law;
and (x) constitutes a "qualified replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; provided, however, that if more than one
mortgage loan is to be substituted for any Deleted Mortgage Loan, then all such
proposed Replacement Mortgage Loans shall, in the aggregate, satisfy the
requirement specified in clause (i) of this definition and each such proposed
Replacement Mortgage Loan shall, individually, satisfy each of the requirements
specified in clauses (ii) through (x) of this definition; and provided, further,
that no mortgage loan shall be substituted for a Deleted Mortgage Loan unless
(x) such prospective Replacement Mortgage Loan shall be acceptable to the
Controlling Class Representative (or, if there is no Controlling Class
Representative then serving, to the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class), in its (or
their) sole discretion, and (y) each Rating Agency shall have confirmed in
writing to the Trustee that such substitution will not in and of itself result
in an Adverse Rating Event with respect to any Class of Rated Certificates (such
written confirmation to be obtained by the party (i.e., the related Mortgage
Loan Seller or Union Capital) effecting the substitution).
"Rated Certificate" shall mean any of the Certificates to which a rating
has been assigned by either Rating Agency at the request of the Depositor.
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"Rated Final Distribution Date" shall mean the Distribution Date in
November 2033.
"Rating Agency" shall mean either of Moody's and Fitch.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any
successor REO Mortgage Loan as to which a Final Recovery Determination
has been made as to the related REO Property, an amount (not less than
zero) equal to (a) the unpaid principal balance of such Mortgage Loan
or REO Mortgage Loan, as the case may be, as of the commencement of
the Collection Period in which the Final Recovery Determination was
made, plus (b) without taking into account the amount described in
subclause (1)(c) of this definition, all unpaid interest accrued in
respect of such Mortgage Loan or REO Mortgage Loan, as the case may
be, to but not including the related Due Date in the Collection Period
in which the Final Recovery Determination was made (or, in the case of
the Pembroke Mortgage Loan, in the first Collection Period
thereafter), exclusive, however, of any portion of such unpaid
interest that constitutes Default Interest or, in the case of an ARD
Loan after its Anticipated Repayment Date, Post-ARD Additional
Interest, minus (c) all payments and proceeds, if any, received in
respect of such Mortgage Loan or REO Mortgage Loan, as the case may
be, during the Collection Period in which such Final Recovery
Determination was made (net of any related Servicing Advances
reimbursed therefrom and any related Liquidation Expenses paid
therefrom);
(2) with respect to each defaulted Mortgage Loan as to which any
portion of the principal or past due interest payable thereunder was
canceled in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, the amount
of such principal or past due interest (other than any Default
Interest and, in the case of an ARD Loan after its Anticipated
Repayment Date, Post-ARD Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured
for any period in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, the amount
of any consequent reduction in the interest portion of each successive
Monthly Payment due thereon (each such Realized Loss to be deemed to
have been incurred on the Due Date for each affected Monthly Payment).
"Record Date" shall mean, with respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate" shall mean any Certificate that has been subject
to registration under the Securities Act. As of the Closing Date, the Class
A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2 and
Class B-3 Certificates constitute Registered Certificates.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of Advance Interest, which rate per annum is equal to the Prime Rate.
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"REMIC" shall mean a "real estate mortgage investment conduit" as defined
in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets designated as such in
Section 2.10(a)
"REMIC I Regular Interest" shall mean any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" in REMIC I. The REMIC I Regular
Interests have the designations and terms provided for in Section 2.10.
"REMIC I Remittance Rate" shall mean the per annum rate at which interest
accrues in respect of any REMIC I Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.10(f).
"REMIC I Residual Interest" shall mean the sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC I
issued pursuant to this Agreement.
"REMIC II" shall mean the segregated pool of assets designated as such in
Section 2.12(a).
"REMIC II Regular Interest" shall mean any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" in REMIC II. The REMIC II Regular
Interests have the designations and terms provided for in Section 2.12.
"REMIC II Regular Interest A-1A" shall mean the REMIC II Regular Interest
which bears the designation "A-1A".
"REMIC II Regular Interest A-1B" shall mean the REMIC II Regular Interest
which bears the designation "A-1B".
"REMIC II Regular Interest A-2" shall mean the REMIC II Regular Interest
which bears the designation "A-2".
"REMIC II Regular Interest A-3" shall mean the REMIC II Regular Interest
which bears the designation "A-3".
"REMIC II Regular Interest A-4" shall mean the REMIC II Regular Interest
which bears the designation "A-4".
"REMIC II Regular Interest B-1" shall mean the REMIC II Regular Interest
which bears the designation "B-1".
"REMIC II Regular Interest B-2" shall mean the REMIC II Regular Interest
which bears the designation "B-2".
"REMIC II Regular Interest B-3" shall mean the REMIC II Regular Interest
which bears the designation "B-3".
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"REMIC II Regular Interest B-4" shall mean the REMIC II Regular Interest
which bears the designation "B-4".
"REMIC II Regular Interest B-5" shall mean the REMIC II Regular Interest
which bears the designation "B-5".
"REMIC II Regular Interest B-6" shall mean the REMIC II Regular Interest
which bears the designation "B-6".
"REMIC II Regular Interest B-7" shall mean the REMIC II Regular Interest
which bears the designation "B-7".
"REMIC II Regular Interest B-8" shall mean the REMIC II Regular Interest
which bears the designation "B-8".
"REMIC II Regular Interest B-9" shall mean the REMIC II Regular Interest
which bears the designation "B-9".
"REMIC II Regular Interest C" shall mean the REMIC II Regular Interest
which bears the designation "C".
"REMIC II Remittance Rate" shall mean the per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.12(f).
"REMIC II Residual Interest" shall mean the sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC II
issued pursuant to this Agreement.
"REMIC III" shall mean the segregated pool of assets designated as such in
Section 2.14(a).
"REMIC III Regular Interest Certificate" shall mean any of the Certificates
designated as such in Section 2.09(i).
"REMIC III Residual Interest" shall mean the sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC III
issued pursuant to this Agreement.
"REMIC Pool" shall mean any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions" shall mean the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC Sub-Account" shall mean a sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and REMIC I, but not an asset of any Grantor Trust Pool.
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"Rents from Real Property" shall mean, with respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or accounts created
and maintained by the Special Servicer, pursuant to Section 3.16(b), on behalf
of the Trustee in trust for the Certificateholders, which shall be entitled
"Midland Loan Services, Inc. [or the name of any successor Special Servicer], as
Special Servicer, in trust for the registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1, REO
Account".
"REO Acquisition" shall mean the acquisition of any REO Property pursuant
to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any REO
Property pursuant to Section 3.18(d).
"REO Extension" shall have the meaning assigned thereto in Section 3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for purposes hereof
to be outstanding with respect to each REO Property. Each REO Mortgage Loan
shall be deemed to provide for monthly payments of principal and/or interest
equal to its Assumed Monthly Payment and otherwise to have the same terms and
conditions as its predecessor Mortgage Loan (such terms and conditions to be
applied without regard to the default on such predecessor Mortgage Loan or the
Trust's acquisition of the subject REO Property). Each REO Mortgage Loan shall
be deemed to have an initial unpaid principal balance and Stated Principal
Balance equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than any Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Servicing Fees and Advances
(together with any related unpaid Advance Interest), shall continue to be
payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as the case may be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by the Special
Servicer on behalf of the Trust for the benefit of the Certificateholders
through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
"REO Status Report" shall mean a report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of
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information in addition to that called for by the form of the "REO Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable, and in
any event, including, with respect to each REO Property that was included in the
Trust Fund as of the close of business on the Determination Date immediately
preceding the preparation of such report, among other things, (i) the
Acquisition Date of such REO Property, (ii) the amount of income collected with
respect to such REO Property (net of related expenses) and other amounts, if
any, received on such REO Property during the related Collection Period and
(iii) the value of the REO Property based on the most recent appraisal or other
valuation thereof available to the Special Servicer as of such Determination
Date (including any valuation prepared internally by the Special Servicer).
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"Replacement Mortgage Loan" shall mean any mortgage loan that is
substituted by a Mortgage Loan Seller or Union Capital for a Deleted Mortgage
Loan as contemplated by Section 2.03.
"Request for Release" shall mean a request signed by a Servicing Officer
of, as applicable, the Master Servicer in the form of Exhibit D-1 attached
hereto or the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan" shall mean any Mortgage Loan (and any successor
REO Mortgage Loan) as to which an Appraisal Trigger Event has occurred; provided
that a Mortgage Loan shall cease to be a Required Appraisal Loan if and when,
following the occurrence of the most recent Appraisal Trigger Event with respect
thereto, such Mortgage Loan has become a Corrected Mortgage Loan and no other
Servicing Transfer Event or Appraisal Trigger Event has occurred with respect
thereto during the preceding three months.
"Reserve Account" shall mean any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period" shall have the meaning assigned thereto in
Section 2.03(b).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, the President, the Treasurer, the Secretary, any Vice President, any
Assistant Vice President, any Trust Officer, any Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to any Fiscal Agent or any Certificate Registrar (other than the
Trustee), any officer or assistant officer thereof.
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"Responsible Party" shall mean: (a) in the case of a Material Document
Defect with respect to any Column Mortgage Loan or KeyBank Mortgage Loan, the
related Mortgage Loan Seller; (b) in the case of a Material Breach with respect
to any Column Mortgage Loan (other than a Union Capital Mortgage Loan) or
KeyBank Mortgage Loan, the related Mortgage Loan Seller; (c) in the case of a
Material Breach with respect to a Union Capital Mortgage Loan, Column or Union
Capital, as applicable, whichever made the representation or warranty as to
which such Material Breach exists; and (d) in the case of a Material Document
Defect or Material Breach with respect to any PMCF Mortgage Loan, PMCF and PMCC,
collectively.
"Restricted Servicer Reports" shall mean each of the Servicer Watch List,
the Operating Statement Analysis Report, the NOI Adjustment Worksheet, Financial
File and the Comparative Financial Status Report.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Certificate" shall mean any of the Certificates designated as such
in Section 2.09(d).
"Senior Principal Distribution Cross-Over Date" shall mean the first
Distribution Date as of which the aggregate of the Class Principal Balances of
the Class A-1A Certificates and the Class A-1B Certificates outstanding
immediately prior thereto equals or exceeds the sum of (a) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date, plus (b) the lesser of (i) the Total Principal
Distribution Amount for such Distribution Date and (ii) the portion of the
Standard Available Distribution Amount for such Distribution Date that will
remain after all distributions of interest to be made on the Senior Certificates
on such Distribution Date pursuant to Section 4.01(a) have been so made.
"Servicer Watch List" shall mean, for any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Servicer Watch List" available
as of the Closing Date on the CMSA Website, is reasonably acceptable to the
Master Servicer or Special Servicer, as applicable, and in any event, which
report shall identify all Performing Mortgage Loans that constitute one of the
following types of Mortgage Loans as of such Determination Date: (i) a Mortgage
Loan that has a then current Debt Service Coverage Ratio that is less than
1.10x; (ii) a Mortgage Loan as to which any required inspection of the related
Mortgaged Property conducted by the Master Servicer indicates, or the Master
Servicer otherwise has actual knowledge of, a problem that the Master Servicer
determines can reasonably be expected to materially adversely affect the cash
flow generated by such Mortgaged Property; (iii) a Mortgage Loan as to which the
Master Servicer has actual knowledge of material damage or waste at the related
Mortgaged Property; (iv) a Mortgage Loan as to which it has come to the Master
Servicer's attention in the performance of its duties under this Agreement
(without any expansion of such duties by reason thereof) that any tenant or
tenants occupying 25% or more of the space in, or responsible for 20% or more of
total rental revenue from, the related Mortgaged Property (A) has or have
vacated such space (without being replaced by a comparable tenant and lease) or
(B) has or have declared bankruptcy; (v) a Mortgage Loan that is at least 60
days delinquent in payment (without regard to any grace period); (vi) a Mortgage
Loan as to which the Net
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Operating Income as stated in the most recent twelve-month operating statement
has decreased 25% or more from the Net Operating Income at origination; and
(vii) a Mortgage Loan that is within 60 days of maturity.
"Servicing Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and necessary
"out-of-pocket" costs and expenses paid or to be paid, as the context requires,
out of its own funds, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of any REO Property, including (1) any such
costs and expenses associated with (a) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Sections 2.03, 3.03(c)
and 3.09, (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "force placed"
insurance policy purchased by the Master Servicer or the Special Servicer to the
extent such cost is allocable to a particular Mortgaged Property that the Master
Servicer or the Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds in respect of any such Mortgage Loan or any REO Property,
(d) any enforcement or judicial proceedings with respect to any such Mortgage
Loan, including foreclosures and similar proceedings, (e) the operation,
management, maintenance and liquidation of any REO Property, (f) obtaining any
Appraisal required to be obtained hereunder, and (g) UCC filings (to the extent
that the costs thereof are not reimbursed by the related Borrower), (2) the
reasonable and direct out-of-pocket travel expenses incurred by the Special
Servicer in connection with performing inspections pursuant to Section 3.12(a),
and (3) any other expenditure which is expressly designated as a Servicing
Advance herein; provided that, notwithstanding anything to the contrary,
"Servicing Advances" shall not include (A) allocable overhead of the Master
Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses, (B) costs incurred by either such party
or any Affiliate thereof in connection with its purchase of any Mortgage Loan or
REO Property pursuant to any provision of this Agreement or (C) costs or
expenses expressly required under this Agreement to be borne by the Master
Servicer or Special Servicer.
"Servicing Fees" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean any documents (other than documents required to
be part of the related Mortgage File, but including any correspondence file) in
the possession or under the control of, or required to be delivered to, as the
context may require the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan or the administration of any
REO Property, including any insurance certificates relating to hazard insurance
policies maintained by the Borrower with respect to the related Mortgaged
Property that are in the possession of the Master Servicer or the Special
Servicer, as the case may be, at any particular time.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer, the Special Servicer or the Special Sub-Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished by
such party to the Trustee and the Depositor on the Closing Date, as such list
may
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be amended from time to time by the Master Servicer, the Special Servicer or the
Special Sub-Servicer, as applicable.
"Servicing Return Date" shall mean, with respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the Master
Servicer and the Special Servicer, subject to applicable law and the express
terms of the relevant Mortgage Loans, to service and administer the Mortgage
Loans and REO Properties for which it is responsible hereunder: (a) with the
same care, skill and diligence as is normal and usual in its general mortgage
servicing and REO property management activities on behalf of third parties or
on behalf of itself, whichever is higher, with respect to mortgage loans and REO
properties that are comparable to those for which it is responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of principal
and interest under the Mortgage Loans, the full collection of all Prepayment
Premiums and Yield Maintenance Charges that may become payable under the
Mortgage Loans and, in the case of the Special Servicer, if a Mortgage Loan
comes into and continues in default and if, in the good faith and reasonable
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments (including payments of Prepayment
Premiums and Yield Maintenance Charges), the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related Net
Mortgage Rate); and (c) without regard to: (i) any known relationship that the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, may have with the related Borrower or
with any other party to this Agreement; (ii) the ownership of any Certificate by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be; (iii) the obligation of the Master
Servicer to make Advances, (iv) the obligation of the Special Servicer to make,
or direct the Master Servicer to make, Servicing Advances; (v) the right of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction; or (vi) any ownership, servicing and/or management
by the Master Servicer (or any Affiliate thereof) or the Special Servicer (or
any Affiliate thereof), as the case may be, of any other mortgage loans or real
property.
"Servicing Transfer Event" shall mean, with respect to any Mortgage Loan,
any of the following events:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Note or the related Mortgage, which failure continues,
or the Master Servicer determines, in its reasonable, good faith judgment,
will continue, unremedied (i) for 60 days beyond the date on which the
subject payment was due, or (ii) in the case of a defaulted Balloon
Mortgage Loan that is delinquent in respect of its Balloon Payment, but as
to which the related Borrower has delivered a refinancing commitment to the
Master Servicer, for such longer period, not to exceed 90 days beyond the
related maturity date, during which the refinancing would occur; or
(b) the Master Servicer has determined, in its reasonable, good faith
judgment, that a default in making a Monthly Payment (including a Balloon
Payment) or any other material
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payment required under the related Mortgage Note or the related Mortgage is
likely to occur within 30 days and either (i) the related Borrower has
requested a material modification of the payment terms of the related
Mortgage Loan or (ii) such default is likely to remain unremedied for at
least the period contemplated by clause (a) of this definition; or
(c) the Master Servicer has determined, in its reasonable, good faith
judgment, that a default, other than as described in clause (a) or (b) of
this definition, has occurred that may materially impair the value of the
related Mortgaged Property as security for the Mortgage Loan, which default
has continued unremedied for the applicable cure period under the terms of
the Mortgage Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Borrower under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or liquidation
of its affairs, shall have been entered against the related Borrower and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(e) the related Borrower shall have consented to the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(f) the related Borrower shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property.
A Servicing Transfer Event with respect to any Mortgage Loan shall cease to
exist:
(w) in the case of the circumstances described in clause (a) above, if
and when the related Borrower has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Borrower or by reason of a modification,
waiver or amendment granted or agreed to by the Master Servicer or the
Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) above, if and when such circumstances cease to exist in the
reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) above, if
and when such default is cured in the reasonable, good faith judgment of
the Special Servicer; and
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(z) in the case of the circumstances described in clause (g) above, if
and when such proceedings are terminated.
"Special Servicer" shall mean Midland, in its capacity as special servicer
hereunder, or any successor special servicer appointed as provided herein.
"Special Servicing Fee" shall mean, with respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan, the fee designated as such and payable
to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"Special Sub-Servicer" shall mean KCCI, in its capacity as special
sub-servicer hereunder, or any successor special sub-servicer appointed as
provided herein and in the Special Sub-Servicing Agreement.
"Special Sub-Servicing Agreement" shall mean the Sub-Servicing Agreement
between the Special Servicer and the Special Sub-Servicer.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as to which
there then exists a Servicing Transfer Event. Upon the occurrence of a Servicing
Transfer Event with respect to any Mortgage Loan, such Mortgage Loan shall
remain a Specially Serviced Mortgage Loan until the earliest of (i) its removal
from the Trust Fund, (ii) an REO Acquisition with respect to the related
Mortgaged Property, and (iii) the cessation of all existing Servicing Transfer
Events with respect to such Mortgage Loan.
"SSBI" shall mean Salomon Smith Barney Inc. or its successor in interest.
"Standard Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum of (i) all amounts on deposit
in the Distribution Account as of 11:00 a.m., New York City time, on such
Distribution Date, (ii) to the extent not included in the amount described in
clause (a)(i) of this definition, any P&I Advances and/or Compensating Interest
Payments that were made in respect of such Distribution Date, (iii) to the
extent not included in the amount described in clause (a)(i) of this definition,
the aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess
Liquidation Proceeds Account to the Distribution Account in respect of such
Distribution Date, and (iv) to the extent not included in the amount described
in clause (a)(i) of this definition, if such Distribution Date occurs during the
month of March of 2001 or any year thereafter, the aggregate of the Interest
Reserve Amounts with respect to the Interest Reserve Loans transferred from the
Interest Reserve Account to the Distribution Account during such month of March
for distribution on such Distribution Date, net of (b) any portion of the
amounts described in clause (a) of this definition that represents one or more
of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period or, in the case of the
Pembroke Mortgage Loan, following the end of the Collection Period next
following the related Collection Period, (ii) any payments of principal
(including Principal Prepayments) and interest, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received after the end of the related
Collection Period, (iii) any Prepayment Premiums, Yield Maintenance Charges
and/or Post-ARD Additional Interest; (iv) the Holiday Inn Orlando Closing Fee,
(v) any amounts payable or reimbursable to any Person from the Distribution
Account pursuant to clauses (ii) through (v) of Section 3.05(b), (vi) if such
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Distribution Date occurs during the month of February of 2001 or any year
thereafter or during the month of January of 2001 or any year thereafter that is
not a leap year, the aggregate of the Interest Reserve Amounts with respect to
the Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and
Section 3.05(b)(vi)) from the Distribution Account and deposited into the
Interest Reserve Account during such month of February or such month of January,
as the case may be, and held for future distribution, and (vii) any amounts
deposited in the Distribution Account in error; provided that the Standard
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(vi) of this
definition.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 2.10(a) (in the case of REMIC I), Section 2.12(a)
(in the case of REMIC II) or Section 2.14(a) (in the case of REMIC III), as
applicable.
"Stated Maturity Date" shall mean, with respect to any Mortgage Loan, the
Due Date specified in the related Mortgage Note (as in effect on the Closing
Date or, in the case of a Replacement Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20 and, in the case of an ARD Loan, without regard to its
Anticipated Repayment Date.
"Stated Principal Balance" shall mean, with respect to any Mortgage Loan
(and any successor REO Mortgage Loan), a principal balance which (a) initially
shall equal the unpaid principal balance thereof as of the related Due Date in
November 2000 or, in the case of any Replacement Mortgage Loan, as of the
related date of substitution, in any event after application of all payments of
principal due thereon on or before such date, whether or not received, and (b)
shall be permanently reduced on each subsequent Distribution Date (to not less
than zero) by (i) that portion, if any, of the Total Principal Distribution
Amount for such Distribution Date attributable to such Mortgage Loan (or
successor REO Mortgage Loan), and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan (or successor REO Mortgage Loan)
during the related Collection Period; provided that, if a Liquidation Event
occurs in respect of any Mortgage Loan or REO Property, then the "Stated
Principal Balance" of such Mortgage Loan or of the related REO Mortgage Loan, as
the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
"Subordinate Certificate" shall mean any of the Certificates designated as
such in Section 2.09(e).
"Subordinate Principal Balance Certificate" shall mean any of the
Certificates designated as such in Section 2.09(g).
"Sub-Servicer" shall mean any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
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"Substitution Shortfall Amount" shall mean, in connection with the
substitution of one or more Replacement Mortgage Loans for any Deleted Mortgage
Loan, the amount, if any, by which the Purchase Price for such Deleted Mortgage
Loan (calculated as if it were to be repurchased, instead of replaced, on the
relevant date of substitution), exceeds the initial Stated Principal Balance or
the initial aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s).
"Tax Matters Person" shall mean, with respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the manner provided
under Treasury regulation section 1.860F-4(d) and temporary Treasury regulation
section 301.6231(a)(7)-1T, which Person shall, pursuant to Section 10.01(b), be
the Plurality Class R Certificateholder.
"Tax Returns" shall mean the federal income tax return on IRS Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each REMIC Pool due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the IRS under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in Section
9.01(a).
"Total Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without duplication)
of the following--
(i) all payments of principal (including Principal Prepayments)
received on the Mortgage Loans during the related Collection Period, in
each case net of any portion of the particular payment that represents a
Late Collection of principal for which a P&I Advance was previously made
for a prior Distribution Date or that represents the principal portion of a
Monthly Payment due on or before the related Due Date in November 2000 or
on a Due Date subsequent to the end of the related Collection Period (or,
in the case of the Pembroke Mortgage Loan, on a Due Date subsequent to the
end of the Collection Period next following the related Collection Period),
(ii) all scheduled payments of principal due in respect of the
Mortgage Loans for their respective Due Dates occurring during the related
Collection Period (or, in the case of the Pembroke Mortgage Loan, on the
Due Date in the Collection Period next following the related Collection
Period) that were received (other than as part of a Principal Prepayment)
prior to the related Collection Period,
(iii) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received on any of the Mortgage Loans during the related
Collection Period that were identified and applied by the Master Servicer
as recoveries of principal of such Mortgage Loans in accordance with
Section 1.03, in each case net of any portion of such proceeds that
represents a Late Collection of principal due on or before the related Due
Date in November 2000 or for which a P&I Advance was previously made for a
prior Distribution Date,
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(iv) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and REO Revenues received in respect of any REO Properties during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of the related REO Mortgage
Loans in accordance with Section 1.03, in each case net of any portion of
such proceeds and/or revenues that represents a Late Collection of
principal due on or before the related Due Date in November 2000 or for
which a P&I Advance was previously made for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances made in
respect of the Mortgage Loans and any REO Mortgage Loans with respect to
such Distribution Date; and
(b) with respect to the Final Distribution Date, an amount equal to
the aggregate Stated Principal Balance of the entire Mortgage Pool
outstanding immediately prior to the Final Distribution Date.
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned thereto
in Section 5.02(d).
"Transferee" shall mean any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Treasury Rate" shall have the meaning assigned thereto in Section 4.01(d).
"Trust" shall mean the trust created hereby.
"Trustee" shall mean Wells Fargo, in its capacity as trustee hereunder, or
any successor trustee appointed as provided herein.
"Trustee Report" shall have the meaning assigned thereto in Section
4.02(a).
"Trustee's Fee" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.0017% per annum.
"Trust Fund" shall mean, collectively, all of the assets of all the REMIC
Pools and Grantor Trust Pools.
"UCC" shall mean the Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
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"Uncertificated Principal Balance" shall mean the principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.10(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.12(e) hereof).
"Underwriters" shall mean, collectively, DLJSC, Prudential, CSFB, McDonald
and SSBI.
"Underwriter Exemptions" shall mean, collectively, PTE 90-83, PTE 90-32,
PTE 89-90 and PTE 91-23, in each case as subsequently amended by PTE 97-34.
"Unfunded Principal Balance Reduction" shall mean any reduction made in the
Class Principal Balance of any Class of Principal Balance Certificates pursuant
to Section 4.04(a), the Uncertificated Principal Balance of any REMIC II Regular
Interest pursuant to Section 4.04(b) or the Uncertificated Principal Balance of
any REMIC I Regular Interest pursuant to Section 4.04(c).
"Union Capital" shall mean Union Capital Investments, LLC or its successor
in interest.
"Union Capital Agreement" shall mean, with respect to each Mortgage Loan
originated by Union Capital, the Seller's Warranty Certificate dated as of
October 27, 2000, executed and delivered by Union Capital, the form of which is
attached hereto as Exhibit N.
"Union Capital Mortgage Loan" shall mean any Mortgage Loan originated by
Union Capital. Each Union Capital Mortgage Loan is also a Column Mortgage Loan.
"United States Person" shall mean a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"Unrestricted Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the Bond Level File,
the Collateral Summary File and the Restricted Servicer Reports).
"USAP" shall mean the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional Appraisal
Practices.
"Voting Rights" shall mean the voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Holders of the various Classes of
Principal Balance Certificates in proportion to the respective Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be allocated to
the Holders of the Class S Certificates. Voting Rights allocated to a particular
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the respective Percentage Interests evidenced by their respective
Certificates.
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"Wells Fargo" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Workout Fee" shall mean, with respect to each Corrected Mortgage Loan, the
fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan, 1.0%.
"Yield Maintenance Certificates" shall mean the Class A-1A, Class A-1B,
Class A-2, Class A-3, Class A-4, Class B-1, Class B-2 and B-3 Certificates.
"Yield Maintenance Charge" shall mean, with respect to any Mortgage Loan,
any premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, calculated, in whole or in
part, pursuant to a yield maintenance formula or otherwise pursuant to a formula
that reflects the lost interest, including a Yield Maintenance Minimum Amount.
"Yield Maintenance Minimum Amount" shall mean, with respect to a Mortgage
Loan that provides that in connection with any Principal Prepayment thereon or
other early collection of principal thereof, the related Borrower must pay a
premium, fee or other additional amount equal to the greater of (a) an amount
calculated pursuant to a yield maintenance formula and (b) a specified amount or
a specified percentage of the amount prepaid, the amount described in clause (b)
of this definition.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby" and
other words of similar import refer to this Agreement as a whole and not to
any particular provision; and
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(vi) the terms "include" and "including" shall mean without limitation
by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Cross-Collateralized Group in
the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds, shall be applied by the Master Servicer among the
Mortgage Loans constituting such Cross-Collateralized Group in accordance with
the express provisions of the related loan documents and, in the absence of such
express provisions, on a pro rata basis in accordance with the respective
amounts then "due and owing" as to each such Mortgage Loan. All amounts
collected in respect of or allocable to any particular Mortgage Loan (whether or
not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the
form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage Note
and Mortgage and, in the absence of such express provisions or if and to the
extent that such terms authorize the lender to use its discretion, shall be
applied: first, as a recovery of any related and unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses; second, as a recovery of
accrued and unpaid interest on such Mortgage Loan to, but not including, the
date of receipt (or, in the case of a full Monthly Payment from any Borrower,
through the related Due Date), exclusive, however, of any portion of such
accrued and unpaid interest that constitutes Default Interest or, in the case of
an ARD Loan after its Anticipated Repayment Date, that constitutes Post-ARD
Additional Interest; third, as a recovery of principal of such Mortgage Loan
then due and owing, including by reason of acceleration of the Mortgage Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of principal to the extent of its
entire remaining unpaid principal balance); fourth, unless a Liquidation Event
has occurred in respect of such Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items; fifth, unless a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Mortgage Loan; seventh, as a
recovery of any Default Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan other than remaining unpaid principal
and, in the case of an ARD Loan after its Anticipated Repayment Date, other than
Post-ARD Additional Interest; tenth, as a recovery of any remaining principal of
such Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and, eleventh, in the case of an ARD Loan after its Anticipated
Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest
on such ARD Loan to but not including the date of receipt.
(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be treated: first, as a recovery of any
related and unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of accrued and unpaid interest on
the related REO Mortgage Loan to, but not including, the Due Date in the
Collection Period of receipt (or, in the case of the Pembroke Mortgage Loan, to
but not including the Due Date in the Collection Period next following the
Collection Period of receipt), exclusive, however, of any portion of such
accrued and
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unpaid interest that constitutes Default Interest or, in the case of an REO
Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment Date,
that constitutes Post-ARD Additional Interest; third, as a recovery of principal
of the related REO Mortgage Loan to the extent of its entire unpaid principal
balance; fourth, as a recovery of any Prepayment Premium or Yield Maintenance
Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
fifth, as a recovery of any Default Charges deemed to be due and owing in
respect of the related REO Mortgage Loan; sixth, as a recovery of any other
amounts deemed to be due and owing in respect of the related REO Mortgage Loan
(other than, in the case of an REO Mortgage Loan that relates to an ARD Loan
after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional
Interest); and seventh, in the case of an REO Mortgage Loan that relates to an
ARD Loan after its Anticipated Repayment Date, as a recovery of any accrued and
unpaid Post-ARD Additional Interest on such REO Mortgage Loan to but not
including the date of receipt.
(c) For the purposes of this Agreement, Post-ARD Additional Interest on an
ARD Loan or a successor REO Mortgage Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan or successor REO Mortgage
Loan, notwithstanding that the terms of the related loan documents so permit. To
the extent any Post-ARD Additional Interest is not paid on a current basis, it
shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Mortgage Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby acknowledged
that the groups of Mortgage Loans identified on the Mortgage Loan Schedule as
being cross-collateralized with each other are, in the case of each such
particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original
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of such document in the Mortgage File for any of the Mortgage Loans constituting
such Cross-Collateralized Group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust be
established pursuant to this Agreement and, further, that such trust be
designated as "DLJ Commercial Mortgage Trust 2000-CKP1". Wells Fargo is hereby
appointed, and does hereby agree, to act as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, assign, transfer and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders, all the right, title and
interest of the Depositor in, to and under (i) the Original Mortgage Loans, all
payments under and proceeds of such Mortgage Loans received after the Closing
Date (other than scheduled payments of interest and principal due on or before
the respective Due Dates for the Original Mortgage Loans in November 2000), and
all documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral; (ii) any REO Property acquired in respect of any
such Mortgage Loan; (iii) such funds or assets as from time to time are
deposited in the Collection Account, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established,
the REO Account; (iv) the Mortgage Loan Purchase Agreements; (v) the Union
Capital Agreement (insofar as such right, title and interest was assigned to the
Depositor under the Column Mortgage Loan Purchase Agreement); and (vi) all other
assets included or to be included in the Trust Fund. This conveyance is subject
to the right of the Designated Sub-Servicers to primary service certain of the
Original Mortgage Loans pursuant to the Designated Sub-Servicer Agreements.
Under United States generally accepted accounting principles, the Depositor
shall report: (i) its acquisition of the Original Column Mortgage Loans from
Column, pursuant to the Column Mortgage Loan Purchase Agreement, as a purchase
of such Mortgage Loans from Column; (ii) its acquisition of the Original KeyBank
Mortgage Loans from KeyBank, pursuant to the KeyBank Mortgage Loan Purchase
Agreement, as a purchase of such Mortgage Loans from KeyBank; (iii) its
acquisition of the Original PMCF Mortgage Loans from PMCF, pursuant to the PMCF
Mortgage Loan Purchase Agreement, as a purchase of such Mortgage Loans from
PMCF; and (iv) its transfer of the Original Mortgage Loans to the Trustee,
pursuant to this Section 2.01(b), as a sale of such Mortgage Loans to the
Trustee. In connection with the foregoing, the Depositor shall cause all of its
records to reflect such acquisitions as purchases and such transfer as a sale
(in each case, as opposed to a secured loan).
After the Depositor's transfer of the Original Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
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(c) The conveyance of the Original Mortgage Loans and the related rights
and property accomplished hereby is absolute and is intended by the parties
hereto to constitute an absolute transfer of such Mortgage Loans and such other
related rights and property by the Depositor to the Trustee for the benefit of
the Certificateholders. Furthermore, it is not intended that such conveyance be
a pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Closing Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in November 2000 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Collection Account, the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account and, if established, the REO
Account and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest under the Mortgage Loan Purchase
Agreements and the Union Capital Agreement (insofar as, in the case of the Union
Capital Agreement, such right, title and interest was assigned to the Depositor
under the Column Mortgage Loan Purchase Agreement), (iii) the possession by the
Trustee or its agent of the Mortgage Notes with respect to the Mortgage Loans
subject hereto from time to time and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or person
designated by such secured party for the purpose of perfecting such security
interest under applicable law, and (iv) notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose of perfecting such security interest under applicable law. The
Depositor shall file or cause to be filed, as a precautionary filing, a Form
UCC-1 substantially in the form attached as Exhibit J hereto in all appropriate
locations in the State of New York promptly following the initial issuance of
the Certificates, and the Master Servicer shall prepare and file at each such
office, and the Trustee shall execute, continuation statements with respect
thereto, in each case within six months prior to the fifth anniversary of the
immediately preceding filing. The Depositor shall cooperate in a reasonable
manner with the Trustee and the Master Servicer in preparing and filing such
continuation statements. This Section 2.01(c) shall constitute notice to the
Trustee pursuant to any requirements of the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage File and any Additional Collateral (other than Reserve Funds) for each
Original Mortgage Loan acquired by the Depositor from such Mortgage Loan Seller.
In addition, with respect to each Mortgage Loan under which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Depositor hereby represents and warrants that it has contractually obligated the
related Mortgage Loan Seller to cause to be prepared, executed and delivered to
the issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are required under such Letter of Credit to assign, without
recourse, to the
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Trustee the related Mortgage Loan Seller's rights as the beneficiary thereof and
drawing party thereunder. The Depositor shall deliver to the Trustee on or
before the Closing Date a fully executed counterpart of each Mortgage Loan
Purchase Agreement and of the Union Capital Agreement.
(e) As soon as reasonably possible, and in any event within 45 days after
the later of (i) the Closing Date (or, in the case of a Replacement Mortgage
Loan substituted as contemplated by Section 2.03, after the related date of
substitution) and (ii) the date on which all recording information necessary to
complete the subject document is received by the Trustee, the Trustee shall
complete (to the extent necessary), and shall submit for recording or filing, as
the case may be, in the appropriate office for real property records or UCC
Financing Statements, as applicable, each assignment of Mortgage and assignment
of Assignment of Leases in favor of the Trustee referred to in clauses (iv) and
(v) of the definition of "Mortgage File" that has been received by the Trustee
or a Custodian on its behalf and each UCC-2 and UCC-3 in favor of the Trustee
referred to in clause (viii) of the definition of "Mortgage File" that has been
received by the Trustee or a Custodian on its behalf. Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee following filing; provided that
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases the Trustee shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Trustee shall direct the related Mortgage Loan
Seller to prepare or cause to be prepared promptly, pursuant to the related
Mortgage Loan Purchase Agreement, a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall, upon receipt thereof, cause
the same to be duly recorded or filed, as appropriate. If any Mortgage Loan
Seller has been so notified and has not prepared a substitute document or cured
such defect, as the case may be, within 60 days, the Trustee shall promptly
notify the Master Servicer, the Special Servicer, the Rating Agencies and the
Controlling Class Representative. Each Mortgage Loan Seller shall be responsible
for paying the reasonable fees and out-of-pocket expenses of the Trustee in
connection with the above-referenced recording and filing of documents insofar
as it relates to the Original Mortgage Loans acquired by the Depositor from such
Mortgage Loan Seller, all as more particularly provided for in the related
Mortgage Loan Purchase Agreement.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Master Servicer, on or before the Closing Date, the following items: (i)
originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of such Mortgage Loan Seller that relate to
the Original Mortgage Loans transferred by it to the Depositor and, to the
extent they are not required to be a part of a Mortgage File in accordance with
the definition thereof, originals or copies of all documents, certificates and
opinions in the possession or under the control of such Mortgage Loan Seller
that were delivered by or on behalf of the related Borrowers in connection with
the origination of such Original Mortgage Loans and that are reasonably required
for the on-going administration and servicing of such Original Mortgage Loans;
(ii) any other documents prepared or delivered by the related Borrowers to such
Mortgage Loan Seller with respect to the Original Mortgage Loans delivered by it
to the Depositor and used by such Mortgage Loan Seller to prepare or assist in
preparing Exhibits A-1 and A-2 to the Prospectus Supplement; and (iii) all
unapplied Reserve Funds and Escrow Payments in the possession or under the
control of such Mortgage Loan Seller that relate to, and that are required for
the ongoing administration and servicing
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of, the Original Mortgage Loans transferred by such Mortgage Loan Seller to the
Depositor. The Master Servicer shall hold all such documents, records and funds
on behalf of the Trustee in trust for the benefit of the Certificateholders.
(g) Also in connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor shall deliver to and deposit with, or cause to be
delivered to and deposited with, the Master Servicer, on or before the Closing
Date, the original or a copy of any Group Environmental Insurance Policy
acquired by the Depositor or an Affiliate of the Depositor.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee, by
its execution and delivery of this Agreement, hereby accepts receipt on behalf
of the Trust, directly or through a Custodian on its behalf, of (i) the Original
Mortgage Loans and all documents delivered to it that constitute portions of the
related Mortgage Files, and (ii) all other assets delivered to it and included
in the Trust Fund, in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and any other documents received by it that constitute portions of the Mortgage
Files, and that it holds and will hold the Original Mortgage Loans and such
other assets, together with any other Mortgage Loans and assets subsequently
delivered to it that are to be included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee or such Custodian shall hold any Letter of Credit in a custodial
capacity only and shall have no obligation to maintain, extend the term of,
enforce or otherwise pursue any rights under such Letter of Credit. In
connection with the foregoing, the Trustee hereby certifies to each of the other
parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage
Loan, except as specifically identified in the Schedule of Exceptions to
Mortgage File Delivery attached hereto as Exhibit B-2, (i) the original Mortgage
Note specified in clause (i) of the definition of "Mortgage File" and all
allonges thereto, if any (or a copy of such Mortgage Note, together with a lost
note affidavit and indemnity certifying that the original of such Mortgage Note
has been lost), are in its possession or the possession of a Custodian on its
behalf, and (ii) such Mortgage Note (or copy thereof) has been reviewed by it or
by such Custodian on its behalf and (A) appears regular on its face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower), (B) appears to have been executed and (C) purports
to relate to such Mortgage Loan.
(b) On or about the 60th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund, and (iii)
the second anniversary of the Closing Date), the Trustee or a Custodian on its
behalf shall review the documents delivered to it or such Custodian with respect
to each Original Mortgage Loan, and the Trustee shall, subject to Sections 1.04,
2.02(c) and 2.02(d), certify in writing (substantially in the form of Exhibit
B-3) to each of the other parties hereto, the Mortgage Loan Sellers and the
Controlling Class Representative that, as to each Original Mortgage Loan then
subject to this Agreement (except as specifically identified in any exception
report annexed to such certification): (i) the original Mortgage Note specified
in clause (i) of the definition of "Mortgage File" and all allonges thereto, if
any (or a copy of such Mortgage Note, together with a lost note affidavit
certifying that the original of such Mortgage Note has been lost), the original
or copy of documents specified in clauses (ii) through (v) and (vii) of the
definition of "Mortgage File" and the documents specified in
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clause (viii) of the definition of "Mortgage File" (without regard to the
parenthetical), have been received by it or a Custodian on its behalf; (ii) if
such report is due more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
(iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Borrower), (B) appear to
have been executed and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clause (ii) (other
than the zip code) of the definition of "Mortgage Loan Schedule" accurately
reflects the information set forth in the related Mortgage File. At any time
subsequent to the second anniversary of the Closing Date, the Trustee shall,
upon request, prepare and deliver to the requesting party (including any
Certificateholder or Certificate Owner) an updated version of the exception
report provided for in the prior sentence.
If a Mortgage Loan Seller or Union Capital substitutes a Replacement
Mortgage Loan for any Deleted Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th
day following the related date of substitution (and, if any exceptions are
noted, every 90 days thereafter until the earliest of (i) the date on which such
exceptions are eliminated and all related recording/filing has been completed,
(ii) the date on which such Replacement Mortgage Loan is removed from the Trust
Fund and (iii) the second anniversary of the date on which such Replacement
Mortgage Loan was added to the Trust Fund). At any time subsequent to the second
anniversary of the date on which such Replacement Mortgage Loan is added to the
Trust Fund, the Trustee shall, upon request, prepare and deliver to the
requesting party (including any Certificateholder) an updated version of the
exception report provided for in the prior sentence.
(c) None of the Trustee, the Master Servicer, the Special Servicer, the
Special Sub-Servicer or any Custodian is under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, except as expressly provided in
Section 2.01(e), none of the Trustee, the Master Servicer, the Special Servicer,
the Special Sub-Servicer or any Custodian shall have any responsibility for
determining whether the text of any assignment or endorsement is in proper or
recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the related Mortgage Loan Seller as
to the purported genuineness of any such document and any signature thereon. It
is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), in clause (vii) and, in the case of any Mortgage Loan secured by a Mortgage
on a health care facility or hospitality property, in clause (viii) of the
definition of "Mortgage File" have been received and such additional information
as will be necessary for delivering the certifications required by subsections
(a) and (b) above.
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SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans by
the Mortgage Loan Sellers and Union Capital.
(a) If any party hereto discovers, or receives notice from a non-party,
that a Document Defect or Breach exists with respect to any Mortgage Loan, then
such party shall give prompt written notice thereof to the other parties hereto,
including (unless it is the party that discovered the Document Defect or Breach)
the Trustee. Upon the Trustee's discovery or receipt of notice that a Document
Defect or Breach exists with respect to any Mortgage Loan, the Trustee shall
notify the Controlling Class Representative, the Depositor, the related Mortgage
Loan Seller, if any Original PMCF Mortgage Loan is involved, PMCC and, if a
Union Capital Mortgage Loan is involved, Union Capital.
If necessary, the Trustee shall request each Mortgage Loan Seller to comply
with the second paragraph of Section 2(c) of the related Mortgage Loan Purchase
Agreement with respect to any Document Defect or other deficiency in a Mortgage
File relating to an Original Mortgage Loan transferred by such Mortgage Loan
Seller to the Depositor. If the Trustee becomes aware of any failure on the part
of any Mortgage Loan Seller to do so, the Trustee shall promptly notify the
Master Servicer and Special Servicer.
(b) Promptly upon its becoming aware of any Material Document Defect or
Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and Special Servicer may) notify the Responsible Party in writing of such
Material Document Defect or Material Breach, as the case may be, and direct the
Responsible Party that it must, not later than 90 days from the receipt by such
Responsible Party of such notice (such 90-day period, the "Initial Resolution
Period"), correct or cure such Material Document Defect or Material Breach, as
the case may be, in all material respects, or repurchase the affected Mortgage
Loan (as, if and to the extent required by the related Mortgage Loan Purchase
Agreement, if a Mortgage Loan Seller is (or, in the case of a PMCF Mortgage
Loan, together with PMCC, is) the Responsible Party, or required by the Union
Capital Agreement, if Union Capital is the Responsible Party), at the applicable
Purchase Price (or, in the case of the repurchase of a Union Capital Mortgage
Loan by Union Capital, at such other price as is provided for in the Union
Capital Agreement, with any shortfall between such price and the applicable
Purchase Price to be made up by Column pursuant to the Column Mortgage Loan
Purchase Agreement); provided that if the Responsible Party certifies to the
Trustee in writing (i) that such Material Document Defect or Material Breach, as
the case may be, does not relate to whether the affected Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
that such Material Document Defect or Material Breach, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(iii) that such Responsible Party has commenced and is diligently proceeding
with the cure of such Material Document Defect or Material Breach, as the case
may be, within the applicable Initial Resolution Period, (iv) what actions such
Responsible Party is pursuing in connection with the cure thereof, and (v) that
such Responsible Party anticipates that such Material Document Defect or
Material Breach, as the case may be, will be cured within an additional 90-day
period (such additional 90-day period, the "Resolution Extension Period") (a
copy of which certification shall be delivered by the Trustee to the Master
Servicer, the Special Servicer and the Controlling Class Representative), then
such Responsible Party shall have an additional period equal to the Resolution
Extension Period to complete such correction or cure (or, if it fails to
complete such correction or cure, to repurchase the affected Mortgage Loan); and
provided, further, that, in lieu of effecting any such repurchase (but, in any
event, no later than such repurchase would have to have been completed), the
Responsible Party in respect of such Material Document Defect or Material
Breach, as the case may be, shall be permitted, during the
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three-month period following the Startup Day for REMIC I (or during the two-year
period following such Startup Day if the affected Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury regulation section 1.860G-2(f)), to replace the affected Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount
equal to the applicable Substitution Shortfall Amount (or, in the case of the
replacement of a Union Capital Mortgage Loan by Union Capital, to pay such other
cash amount as is provided for in the Union Capital Agreement, with any
shortfall between such other cash amount and the applicable Substitution
Shortfall Amount to be made up by Column pursuant to the Column Mortgage Loan
Purchase Agreement), subject to any other applicable terms and conditions of the
related Mortgage Loan Purchase Agreement or the Union Capital Agreement, as the
case may be, and this Agreement. If any substitution for a Deleted Mortgage Loan
is not completed in all respects by the end of the three-month (or, if
applicable, the two-year) period contemplated by the preceding sentence, the
Responsible Party (whether it is the related Mortgage Loan Seller, PMCC or Union
Capital) that desired to effect such substitution shall be barred from doing so
(and, accordingly, will be limited to the cure/repurchase remedies contemplated
hereby), and no party hereto shall be liable thereto for any loss, liability or
expense resulting from the expiration of such period. If any Mortgage Loan is to
be repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer shall designate the Collection Account as the account to which funds in
the amount of the applicable Purchase Price or Substitution Shortfall Amount (as
the case may be) are to be wired, and the Master Servicer shall promptly notify
the Trustee when such deposit is made. Any such repurchase or replacement of a
Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, if there exists in respect of any Union Capital
Mortgage Loan a Material Breach on the part of Column under the Column Mortgage
Loan Purchase Agreement (other than a Material Breach of any of the
representations and warranties of Column relating to or affecting the status of
the affected Mortgage Loan as a "qualified mortgage" within the meaning of the
REMIC Provisions) and a Material Breach on the part of Union Capital under the
Union Capital Agreement, and such Material Breaches give rise to a cure or
repurchase/substitution obligation under both the Column Mortgage Loan Purchase
Agreement and the Union Capital Agreement, then the Master Servicer shall
request Column to correct or cure Column's Material Breach or to repurchase or
replace the affected Mortgage Loan only if Union Capital does not do so within
the Initial Resolution Period and, if applicable, the Resolution Extension
Period in respect of the Material Breach on the part of Union Capital, and the
Initial Resolution Period in respect of the Material Breach on the part of
Column will be deemed not to commence until such request is so made of Column;
provided that, in such case, Column shall not be entitled to a Resolution
Extension Period in respect of the Material Breach on its part.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by a Mortgage Loan
Seller, PMCC or Union Capital as contemplated by this Section 2.03, then, prior
to the subject repurchase or substitution, the Master Servicer shall use its
best efforts, subject to the terms of the related Mortgage Loans, to prepare
and, to the extent necessary and appropriate, have executed by the related
Borrower and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto; provided that no
such termination shall be effected unless and until the Master Servicer and the
Trustee have received from the Responsible Party (i) an Opinion of Counsel
addressed to the Trustee to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to any Grantor Trust Pool
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and (ii) written confirmation from each Rating Agency that such termination will
not cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and provided, further, that the Responsible Party may, at its
option, repurchase or replace the entire Cross-Collateralized Group without
termination of the cross-collateralization. To the extent necessary and
appropriate, the Trustee shall execute (or, subject to Section 3.10, provide the
Master Servicer with a limited power of attorney that enables the Master
Servicer to execute) the loan documentation referred to in the prior sentence;
provided that the Trustee shall not be liable for any misuse of any such power
of attorney by the Master Servicer. The Master Servicer shall advance all costs
and expenses incurred by the Trustee and the Master Servicer pursuant to this
paragraph, and such advances shall (i) constitute and be reimbursable as
Servicing Advances and (ii) be included in the calculation of Purchase Price for
the Mortgage Loan(s) to be repurchased or replaced. Neither the Master Servicer
nor the Special Servicer shall be liable to any Certificateholder or any other
party hereto if the cross-collateralization of any Cross-Collateralized Group
cannot be terminated as contemplated by this paragraph for any reason beyond the
control of the Master Servicer or Special Servicer, as the case may be. If the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph, then, for purposes of this Section 2.03, the
related Mortgage Loan Purchase Agreement and, in the case of a
Cross-Collateralized Group of Union Capital Mortgage Loans, the Union Capital
Agreement, including for purposes of (i) determining whether any Breach or
Document Defect is a Material Breach or Material Document Defect, as the case
may be, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Deleted Mortgage
Loan by a Responsible Party as contemplated by this Section 2.03, the Master
Servicer shall direct the Responsible Party effecting the substitution to
deliver the related Mortgage File to the Trustee, to certify that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy, as
the case may be, all of the requirements of the definition of "Qualifying
Substitute Mortgage Loan" and to send such certification to the Trustee. No
mortgage loan may be substituted for a Deleted Mortgage Loan as contemplated by
this Section 2.03 if the Mortgage Loan to be replaced was itself a Replacement
Mortgage Loan, in which case, absent a cure of the relevant Material Breach or
Material Document Defect, the affected Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) after the related date of substitution, and
Monthly Payments due with respect to each corresponding Deleted Mortgage Loan
(if any) after the related Due Date in November 2000 and on or prior to the
related date of substitution, shall be part of the Trust Fund. Monthly Payments
due with respect to each Replacement Mortgage Loan (if any) on or prior to the
related date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date of
substitution, shall not be part of the Trust Fund and are to be remitted by the
Master Servicer to the Responsible Party effecting the related substitution
promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced by a Responsible
Party as contemplated by this Section 2.03, the Master Servicer shall direct the
related Mortgage Loan Seller to amend the Mortgage Loan Schedule to reflect the
removal of any Deleted Mortgage Loan and, if applicable, the substitution of the
related Replacement Mortgage Loan(s); and, upon its receipt of such amended
Mortgage Loan Schedule, the Master Servicer shall deliver or cause the delivery
of such amended Mortgage Loan Schedule to the other parties hereto. Upon any
substitution of one or more Replacement Mortgage Loans for a Deleted Mortgage
Loan, such Replacement Mortgage Loan(s) shall become part of the Trust Fund and
be subject to the terms of this Agreement in all respects.
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The reasonable "out-of-pocket" costs and expenses incurred by the Master
Servicer and/or the Trustee pursuant to this Section 2.03(b), including
reasonable attorney fees and expenses, shall constitute Servicing Advances to
the extent not collected from the Mortgage Loan Seller.
(c) Upon receipt of an Officer's Certificate from the Master Servicer to
the effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by a
Responsible Party as contemplated by this Section 2.03 has been deposited in the
Collection Account, and further, if applicable, upon receipt of the Mortgage
File for each Replacement Mortgage Loan (if any) to be substituted for a Deleted
Mortgage Loan, together with the certification referred to in the penultimate
paragraph of Section 2.03(b) from the Responsible Party effecting the
substitution, if any, the Trustee shall (i) release or cause the release of the
Mortgage File and any Additional Collateral held by or on behalf of the Trustee
for the Deleted Mortgage Loan to the Responsible Party effecting the
repurchase/substitution or its designee and (ii) execute and deliver such
instruments of release, transfer and/or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
Responsible Party effecting the repurchase/substitution or its designee the
ownership of the Deleted Mortgage Loan, and the Master Servicer shall notify the
applicable Borrowers of the transfers of the Deleted Mortgage Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such repurchase or
substitution by a Responsible Party, each of the Master Servicer and the Special
Servicer shall deliver to the Responsible Party effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the Responsible Party effecting the repurchase/substitution. In
connection with any repurchase or replacement of a Union Capital Mortgage Loan
by Column, the Trustee shall assign to Column all right, title and interest of
the Trustee in respect of such Mortgage Loan under the Union Capital Agreement.
The reasonable "out-of-pocket" costs and expenses incurred by the Master
Servicer, the Special Servicer and/or the Trustee pursuant to this Section
2.03(c), to the extent not collected from the Mortgage Loan Seller, shall be
reimbursable to each of them as Servicing Advances in respect of the affected
Mortgage Loan.
(d) The related Mortgage Loan Purchase Agreement and, in the case of a
Union Capital Mortgage Loan, the Union Capital Agreement provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If a Responsible Party defaults on its
obligations to repurchase or replace any Mortgage Loan as contemplated by this
Section 2.03, the Master Servicer shall (and the Special Servicer may) promptly
notify the Trustee, and the Trustee shall notify the Certificateholders.
Thereafter, the Master Servicer shall take such actions on behalf of the Trust
with respect to the enforcement of such repurchase/substitution obligations (and
if the Master Servicer (or the Special Servicer) is notified or otherwise
becomes aware of a default on the part of any Mortgage Loan Seller in respect of
its obligations under the second paragraph of Section 2(c) of the related
Mortgage Loan Purchase Agreement, the Master Servicer shall (and the Special
Servicer may) also take such actions on behalf of the Trust with respect to the
enforcement of such obligations of such Mortgage Loan Seller), including the
institution and prosecution of appropriate legal proceedings, as the Master
Servicer (or, if applicable, the Special Servicer) shall determine are in the
best interests of the Certificateholders (taken as a collective whole). Any and
all reasonable "out-of-pocket" costs and expenses incurred by the Master
Servicer, the Special Servicer and/or the Trustee pursuant to this Section
2.03(d), including, reasonable attorney fees and expenses, to the extent not
collected from the Mortgage Loan Seller, shall constitute Servicing Advances in
respect of the affected Mortgage Loan.
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SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Depositor, is
likely to affect materially and adversely either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions involving the Depositor
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Depositor's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriters, and (C) any recordation of the
assignments of Mortgage Loan documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Original Mortgage Loans to the
Trustee as contemplated herein requires no regulatory approval, other than
any such approvals as have been
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obtained, and is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
(viii) The Depositor is not transferring the Original Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(ix) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Original
Mortgage Loans to the Trustee, pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Original Mortgage Loans
to the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and obligations,
including contingent and unliquidated debts and obligations of the
Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(xi) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xii) No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Depositor are pending or contemplated, except for or
in connection with the announced acquisition of Donaldson, Lufkin &
Jenrette, Inc. by Credit Suisse First Boston, Inc.
(xiii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(xiv) Immediately prior to the transfer of the Original Mortgage Loans
to the Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Original Mortgage Loan as was transferred to it by the related Mortgage
Loan Seller pursuant to the related Mortgage Loan Purchase Agreement. The
Depositor has not transferred any of its right, title and interest in and
to the Original Mortgage Loans to any Person other than the Trustee.
(xv) The Depositor is transferring all of its right, title and
interest in and to the Original Mortgage Loans to the Trustee for the
benefit of the Certificateholders free and clear of any and all liens,
pledges, charges and security interests created by or through the
Depositor.
(xvi) Except for any actions that are the express responsibility of
another party hereunder or under any Mortgage Loan Purchase Agreement, and
further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of all of
its right, title and interest in and to the Original Mortgage Loans by the
Depositor to the Trustee.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of th9is Agreement and
shall inure to the benefit of the Persons
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for whose benefit they were made for so long as the Trust remains in existence.
Upon discovery by any party hereto of any breach of any of such representations
and warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice thereof to the other parties hereto.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Master Servicer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Michigan, and the Master
Servicer is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The Master Servicer's execution and delivery of, performance under and
compliance with this Agreement, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other material instrument to which it is a
party or by which it is bound, which default or breach, in the good faith and
reasonable judgment of the Master Servicer, is likely to affect materially and
adversely either the ability of the Master Servicer to perform its obligations
under this Agreement or the financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to enter into
and consummate all transactions involving the Master Servicer contemplated by
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by
each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Master Servicer, enforceable against the Master Servicer in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting
the enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Master Servicer's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of the Master Servicer to perform its obligations under this Agreement
or the financial condition of the Master Servicer.
(vi) No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required for the consummation by the
Master Servicer of the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously have been obtained
or where the lack of such consent, approval, authorization or
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order would not have a material adverse effect on the ability of the Master
Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer that, if determined adversely
to the Master Servicer, would prohibit the Master Servicer from entering into
this Agreement or that, in the Master Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(viii) The Master Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(ix) The Master Servicer has examined each of the Sub-Servicing Agreements
entered into by the Master Servicer that will be in effect as of the Closing
Date with respect to the Mortgage Loans, and each such Sub-Servicing Agreement
complies with the requirements of Section 3.22(a) in all material respects.
(b) The representations and warranties of the Master Servicer set forth in
Section 2.05(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
a breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.06. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default, in the good faith and reasonable judgment of the
Special Servicer, is likely to affect materially and adversely either the
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ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions involving the Special Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
the Special Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer that, if
determined adversely to the Special Servicer, would prohibit the Special
Servicer from entering into this Agreement or that, in the Special
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(viii) The Special Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(ix) The Special Servicer has examined each of the Sub-Servicing
Agreements entered into by the Special Servicer that will be in effect as
of the Closing Date with respect to the Mortgage Loans, including the
Special Sub-Servicing Agreement, and each such Sub-Servicing Agreement
complies with the requirements of Section 3.22(a) in all material respects.
(b) The representations and warranties of the Special Servicer set forth in
Section 2.06(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
a breach of any of such representations and warranties that materially and
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adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07. Representations, Warranties and Covenants of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with, each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the Trustee
with such laws) and to perform its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, will not violate the Trustee's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee is likely
to affect materially and adversely either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally and, in
particular, the rights of creditors of national banking associations, and
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and delivery
of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
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(vi) No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required for the consummation by the
Trustee of the transactions contemplated herein, except for those consents,
approvals, authorizations or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the Trustee's knowledge,
threatened against the Trustee that, if determined adversely to the Trustee,
would prohibit the Trustee from entering into this Agreement or that, in the
Trustee's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in accordance
with Section 8.06.
(b) The representations, warranties and covenants of the Trustee set forth
in Section 2.07(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any party
hereto of a breach of any such representations, warranties and covenants that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date of
its succession, each of the representations and warranties set forth in Section
2.07(a), subject to such appropriate modifications to the representation,
warranty and covenant set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.08. Representations and Warranties of the Special Sub-Servicer.
(a) The Special Sub-Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Sub-Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan, and
the Special Sub-Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Special Sub-Servicer's execution and delivery of, performance
under and compliance with this Agreement and the Special Sub-Servicing
Agreement, will not violate the Special Sub-Servicer's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other material instrument to which it
is a party or by which it is bound, which default or breach, in the good
faith and reasonable judgment of the Special Sub-Servicer, is likely to
affect materially and adversely either the ability of the Special
Sub-Servicer to perform its obligations under this Agreement or the Special
Sub-Servicing Agreement or the financial condition of the Special
Sub-Servicer.
(iii) The Special Sub-Servicer has the full power and authority to
enter into and consummate all transactions involving the Special
Sub-Servicer contemplated by this Agreement
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and the Special Sub-Servicing Agreement, has duly authorized the execution,
delivery and performance of this Agreement and the Special Sub-Servicing
Agreement, and has duly executed and delivered this Agreement and the
Special Sub-Servicing Agreement.
(iv) This Agreement and the Special Sub-Servicing Agreement, assuming
due authorization, execution and delivery by each of the other parties
hereto and thereto, each constitutes a valid, legal and binding obligation
of the Special Sub-Servicer, enforceable against the Special Sub-Servicer
in accordance with its terms, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Special Sub-Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement and
the Special Sub-Servicing Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Sub-Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Sub-Servicer to perform its obligations under
this Agreement or the Special Sub-Servicing Agreement or the financial
condition of the Special Sub-Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Sub-Servicer of the transactions contemplated
herein or in the Special Sub-Servicing Agreement, except for those
consents, approvals, authorizations or orders that previously have been
obtained and where the lack of such consent, approval, authorization or
order would not have a material adverse effect on the ability of the
Special Sub-Servicer to perform its obligations under this Agreement and
the Special Sub-Servicing Agreement.
(vii) No litigation is pending or, to the best of the Special
Sub-Servicer's knowledge, threatened against the Special Sub-Servicer that,
if determined adversely to the Special Sub-Servicer, would prohibit the
Special Sub-Servicer from entering into this Agreement or the Special
Sub-Servicing Agreement or that, in the Special Sub-Servicer's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Special Sub-Servicer to perform its obligations
under this Agreement or the Special Sub-Servicing Agreement or the
financial condition of the Special Sub-Servicer.
(viii) The Special Sub-Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(ix) The Special Sub-Servicing Agreement complies with the
requirements of Section 3.22(a) in all material respects.
(b) The representations and warranties of the Special Sub-Servicer set
forth in Section 2.08(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially
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and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Any successor Special Sub-Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.08(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.08(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.09. Designation of the Certificates.
(a) The Certificates shall consist of 19 Classes with the following
respective alphabetical and/or numerical class designations: "Class S", "Class
A-1A", "Class A-1B", "Class A-2", "Class A-3", "Class A-4", "Class B-1", "Class
B-2", "Class B-3", "Class B-4", "Class B-5", "Class B-6", "Class B-7", "Class
B-8", "Class B-9", "Class C", "Class D", "Class E" and "Class R".
(b) The Class A-1A, Class A-1B, Class A-2, Class A-3 and Class A-4
Certificates are collectively designated as the "Class A Certificates".
(c) The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8 and Class B-9 Certificates are collectively designated as
the "Class B Certificates".
(d) The Class S, Class A-1A and Class A-1B Certificates are collectively
designated as the "Senior Certificates".
(e) The Class A-2, Class A-3, Class A-4, Class B, Class C and Class R
Certificates are collectively designated as the "Subordinate Certificates".
(f) The Class A, Class B and Class C Certificates are collectively
designated as the "Principal Balance Certificates".
(g) The Class A-2, Class A-3, Class A-4, Class B and Class C Certificates
are collectively designated as the "Subordinate Principal Balance Certificates".
(h) The Class S Certificates are also designated as the "Interest Only
Certificates".
(i) The Interest Only Certificates and the Principal Balance Certificates
are collectively designated as the "REMIC III Regular Interest Certificates".
SECTION 2.10. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Class R; Certain Matters Involving
REMIC I.
(a) It is the intention of the parties hereto that the following segregated
pool of assets constitute a REMIC for federal income tax purposes and, further,
that such segregated pool of assets be designated as "REMIC I": (i) the Mortgage
Loans that are from time to time subject to this Agreement together with (A) all
payments under and proceeds of such Mortgage Loans received after the Closing
Date or, in the case of any such Mortgage Loan that is a Replacement Mortgage
Loan, after the related date of substitution (other than scheduled payments of
interest and principal due on or before the respective Due Dates for the
Original Mortgage Loans in November 2000 or, in the case of any such
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Mortgage Loan that is Replacement Mortgage Loan, on or before the related date
of substitution, and exclusive of any amounts that constitute Post-ARD
Additional Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates), and (B) all documents included in the related
Mortgage Files and Servicing Files and any related Additional Collateral; (ii)
any REO Property acquired in respect of any Mortgage Loan; (iii) such funds and
assets as from time to time are deposited in the Collection Account, the
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account and, if established, the REO Account (exclusive of any amounts
that constitute Post-ARD Additional Interest collected in respect of the ARD
Loans after their respective Anticipated Repayment Dates); (iv) the rights of
the Depositor under the respective Mortgage Loan Purchase Agreements; and (v)
the rights of the Depositor under the Union Capital Agreement (insofar as such
rights were assigned thereto under the Column Mortgage Loan Purchase Agreement).
The Closing Date is hereby designated as the "Startup Day" of REMIC I within the
meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the Original Mortgage Loans and
certain related assets to the Trustee pursuant to Section 2.01(b) and in
exchange therefor, the REMIC I Regular Interests and the REMIC I Residual
Interest shall be issued. A separate REMIC I Regular Interest shall be issued
with respect to each Original Mortgage Loan. For purposes of this Agreement,
each REMIC I Regular Interest shall relate to the Original Mortgage Loan in
respect of which it was issued, to each Replacement Mortgage Loan (if any)
substituted for such Original Mortgage Loan, and to each REO Mortgage Loan
deemed outstanding with respect to any REO Property acquired in respect of any
such Original Mortgage Loan or any such Replacement Mortgage Loan. Neither the
REMIC I Residual Interest nor any of the REMIC I Regular Interests shall be
certificated. The REMIC I Regular Interests and the REMIC I Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the REMIC I Residual
Interest shall constitute the sole "residual interest" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC I. None of the parties hereto, to the
extent it is within the control thereof, shall create or permit the creation of
any other "interests" in REMIC I (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Mortgage Loan set forth in the
Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated Principal
Balance. As of the Closing Date, the Uncertificated Principal Balance of each
REMIC I Regular Interest shall equal the Cut-off Date Principal Balance of the
related Original Mortgage Loan (as specified in the Mortgage Loan Schedule). On
each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by any distributions of principal
deemed made with respect to such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.01(l) and, further, by any Unfunded Principal Balance
Reduction made with respect to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall not otherwise be increased or reduced. Deemed distributions to
REMIC II in reimbursement of Unfunded Principal Balance Reductions with respect
to a REMIC I Regular Interest shall not constitute deemed distributions of
principal and shall not result in any reduction of the Uncertificated Principal
Balance of such REMIC I Regular Interest.
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(f) Each REMIC I Regular Interest shall have a REMIC I Remittance Rate. The
REMIC I Remittance Rate with respect to any particular REMIC I Regular Interest
for any Interest Accrual Period shall be calculated as follows:
(i) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on a 30/360 Basis,
then the REMIC I Remittance Rate with respect to the subject REMIC I
Regular Interest for any Interest Accrual Period shall equal the Net
Mortgage Rate in effect for the related Original Mortgage Loan as of the
Closing Date;
(ii) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on an Actual/365
Basis, then the REMIC I Remittance Date with respect to the subject REMIC I
Regular Interest for any Interest Accrual Period shall equal the product of
(A) the Net Mortgage Rate in effect for the related original Mortgage Loan
as of the Closing Date, multiplied by (B) a fraction (expressed as a
percentage), the numerator of which is the number of days in such Interest
Accrual Period, and the denominator of which is 365, multiplied by (C) 12;
and
(iii) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on an Actual/360
Basis, then the REMIC I Remittance Rate with respect to the subject REMIC I
Regular Interest for any Interest Accrual Period shall (subject to
adjustment as provided below in this clause (ii)) equal the product of (A)
a fraction (expressed as a percentage), the numerator of which is the
number of days in such Interest Accrual Period, and the denominator of
which is 30, multiplied by (B) the Net Mortgage Rate in effect for the
related Original Mortgage Loan as of the Closing Date; provided that, in
the case of a REMIC I Regular Interest that corresponds to an Interest
Reserve Loan, if the subject Interest Accrual Period occurs during the
month of January of 2001 or any year thereafter or during the month of
December of 2000 or any year thereafter that does not immediately precede a
leap year, the REMIC I Remittance Rate with respect to such REMIC I Regular
Interest for such Interest Accrual Period shall equal (M) the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such
Interest Accrual Period, calculated without regard to this proviso, minus
(N) a fraction (expressed as a percentage), the numerator of which is equal
to 12 times the related Interest Reserve Amount that is to be transferred
from the Distribution Account to the Interest Reserve Account in the
following calendar month in accordance with Section 3.04(c), and the
denominator of which is equal to the Uncertificated Principal Balance of
such REMIC I Regular Interest outstanding immediately prior to the related
Distribution Date; and, provided, further, that, in the case of a REMIC I
Regular Interest that corresponds to an Interest Reserve Loan, if the
subject Interest Accrual Period occurs during the month of February of 2001
or any year thereafter, the REMIC I Remittance Rate with respect to such
REMIC I Regular Interest for such Interest Accrual Period shall equal (S)
the REMIC I Remittance Rate with respect to such REMIC I Regular Interest
for such Interest Accrual Period, calculated without regard to this
proviso, plus (T) a fraction (expressed as a percentage), the numerator of
which is equal to 12 times any related Interest Reserve Amount(s) to be
transferred from the Interest Reserve Account to the Distribution Account
pursuant to Section 3.05(c) for distribution on the related Distribution
Date, and the denominator of which is equal to the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to
the related Distribution Date.
(g) Each REMIC I Regular Interest shall bear interest, and such
interest shall commence accruing on November 1, 2000. In the case of each
REMIC I Regular Interest, such interest
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shall be calculated on a 30/360 Basis and, during each Interest Accrual
Period, shall accrue at the REMIC I Remittance Rate with respect to such
REMIC I Regular Interest for such Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date. The total
amount of such interest accrued with respect to each REMIC I Regular
Interest during each Interest Accrual Period (herein referred to as the
"Interest Accrual Amount" with respect to such REMIC I Regular Interest for
such Interest Accrual Period) shall equal 1/12 of the product of (i) the
REMIC I Remittance Rate with respect to such REMIC I Regular Interest for
such Interest Accrual Period, multiplied by (ii) the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately
prior to the related Distribution Date. The portion of the Interest Accrual
Amount with respect to any REMIC I Regular Interest for any Interest
Accrual Period that shall be distributable to REMIC II, as the holder of
such REMIC I Regular Interest, on the related Distribution Date pursuant to
Section 4.01(l), shall be an amount (herein referred to as the "Current
Interest Distribution Amount" with respect to such REMIC I Regular Interest
for the related Distribution Date) equal to (i) the Interest Accrual Amount
with respect to such REMIC I Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by (ii) the portion of any
Net Aggregate Prepayment Interest Shortfall for such Distribution Date that
is allocable to such REMIC I Regular Interest. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for
each Distribution Date shall be allocated among all the REMIC I Regular
Interests on a pro rata basis in accordance with their respective Interest
Accrual Amounts for the related Interest Accrual Period. If the entire
Current Interest Distribution Amount with respect to any REMIC I Regular
Interest for any Distribution Date is not deemed distributed to REMIC II,
as the holder of such REMIC I Regular Interest, on such Distribution Date
pursuant to Section 4.01(l), then the unpaid portion of such Current
Interest Distribution Amount shall be added to, and be payable as part of,
the Carryforward Interest Distribution Amount with respect to such REMIC I
Regular Interest for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any REMIC I Regular Interest for any
Distribution Date shall be an amount equal to the excess, if any, of (i)
all Current Interest Distribution Amounts with respect to such REMIC I
Regular Interest for all prior Distribution Dates, if any, over (ii) the
total amount of interest deemed distributed to REMIC II with respect to
such REMIC I Regular Interest on all such prior Distribution Dates, if any,
pursuant to Section 4.01(l).
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I
Regular Interest shall be the Rated Final Distribution Date.
(i) The REMIC I Residual Interest will not have a principal balance
and will not bear interest.
SECTION 2.11. Conveyance of the REMIC I Regular Interests; Acceptance of
the REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all of its
right, title and interest in and to the REMIC I Regular Interests to the Trustee
for the benefit of the REMIC III Regular Interest Certificateholders and the
Class R Certificateholders. The Trustee acknowledges the assignment to it of the
REMIC I Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future REMIC III
Regular Interest Certificateholders and Class R Certificateholders.
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SECTION 2.12. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain Matters
Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests to
the Trustee pursuant to Section 2.11 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. There
shall be 15 separate REMIC II Regular Interests. Neither the REMIC II Residual
Interest nor any of the REMIC II Regular Interests shall be certificated. The
REMIC II Regular Interests and the REMIC II Residual Interest shall collectively
constitute the entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the REMIC II
Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests will have the following respective
alphabetical and/or numerical designations: "A-1A", "A-1B", "A-2", "A-3", "A-4",
"B-1", "B-2", "B-3", "B-4", "B-5", "B-6", "B-7", "B-8", "B-9" and "C".
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(e) Each REMIC II Regular Interest shall have an Uncertificated Principal
Balance. The following table sets forth for each REMIC II Regular Interest the
initial Uncertificated Principal Balance thereof:
DESIGNATION OF INITIAL UNCERTIFICATED
REMIC II REGULAR INTEREST PRINCIPAL BALANCE
------------------------- -----------------
A-1A $210,310,000
A-1B $789,377,000
A-2 $ 51,596,000
A-3 $ 58,047,000
A-4 $ 16,124,000
B-1 $ 16,124,000
B-2 $ 25,798,000
B-3 $ 12,899,000
B-4 $ 33,861,000
B-5 $ 17,736,000
B-6 $ 9,674,000
B-7 $ 9,675,000
B-8 $ 16,124,000
B-9 $ 6,449,000
C $ 16,124,771
On each Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be permanently reduced by any distributions of
principal deemed made with respect to such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01(k) and, further, by any Unfunded
Principal Balance Reduction made with respect to such REMIC II Regular Interest
on such Distribution Date pursuant to Section 4.04(b). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall not otherwise be increased or decreased. Deemed
distributions to REMIC III in reimbursement of Unfunded Principal Balance
Reductions with respect to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II Remittance Rate
that, with respect to any Interest Accrual Period, shall equal the weighted
average, expressed as a percentage and rounded to eight decimal places, of the
respective REMIC I Remittance Rates in effect for all the REMIC I Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest, and such interest
shall commence accruing on November 1, 2000. In the case of each REMIC II
Regular Interest, such interest shall be calculated on a 30/360 Basis and,
during each Interest Accrual Period, shall accrue at the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest Accrual
Period on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to the related Distribution Date. The total amount
of such interest accrued with respect to each REMIC II Regular Interest during
each Interest Accrual Period (herein referred to as the
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"Interest Accrual Amount" with respect to such REMIC II Regular Interest for
such Interest Accrual Period) shall equal 1/12 of the product of (i) the REMIC
II Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period, multiplied by (ii) the Uncertificated Principal Balance
of such REMIC II Regular Interest outstanding immediately prior to the related
Distribution Date. The portion of the Interest Accrual Amount with respect to
any REMIC II Regular Interest for any Interest Accrual Period that shall be
distributable to REMIC III, as the holder of such REMIC II Regular Interest, on
the related Distribution Date pursuant to Section 4.01(k), shall be an amount
(herein referred to as the "Current Interest Distribution Amount" with respect
to such REMIC II Regular Interest for the related Distribution Date) equal to
(i) the Interest Accrual Amount with respect to such REMIC II Regular Interest
for the related Interest Accrual Period, reduced (to not less than zero) by (ii)
the portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that is allocable to such REMIC II Regular Interest. For
purposes of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if
any, for each Distribution Date shall be allocated among all the REMIC II
Regular Interests on a pro rata basis in accordance with their respective
Interest Accrual Amounts for the related Interest Accrual Period. If the entire
Current Interest Distribution Amount with respect to any REMIC II Regular
Interest for any Distribution Date is not deemed distributed to REMIC III, as
the holder of such REMIC II Regular Interest, on such Distribution Date pursuant
to Section 4.01(k), then the unpaid portion of such Current Interest
Distribution Amount shall be added to, and be payable as part of, the
Carryforward Interest Distribution Amount with respect to such REMIC II Regular
Interest for future Distribution Dates. The "Carryforward Interest Distribution
Amount" with respect to any REMIC II Regular Interest for any Distribution Date
shall be an amount equal to the excess, if any, of (i) all Current Interest
Distribution Amounts with respect to such REMIC II Regular Interest for all
prior Distribution Dates, if any, over (ii) the total amount of interest deemed
distributed to REMIC III with respect to such REMIC II Regular Interest on all
such prior Distribution Dates, if any, pursuant to Section 4.01(k).
(h) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal balance and
shall not bear interest.
SECTION 2.13. Conveyance of the REMIC II Regular Interests; Acceptance of
the REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all of its
right, title and interest in and to the REMIC II Regular Interests to the
Trustee for the benefit of the REMIC III Regular Interest Certificateholders and
the Class R Certificateholders. The Trustee acknowledges the assignment to it of
the REMIC II Regular Interests and declares that it holds and will hold the same
in trust for the exclusive use and benefit of all present and future REMIC III
Regular Interest Certificateholders and Class R Certificateholders.
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SECTION 2.14. Creation of REMIC III; Issuance of the REMIC III Regular
Interest Certificates and the REMIC III Residual Interest;
Certain Matters Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests to
the Trustee pursuant to Section 2.13 and in exchange therefor, the REMIC III
Residual Interest shall be issued, and the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, to or upon the order of
the Depositor, the REMIC III Regular Interest Certificates in authorized
denominations. There shall be 16 Classes of REMIC III Regular Interest
Certificates. The REMIC III Residual Interest shall not be certificated. The
interests evidenced by the REMIC III Regular Interest Certificates, together
with the REMIC III Residual Interest, shall collectively constitute the entire
beneficial ownership of REMIC III.
(c) The respective Classes of the REMIC III Regular Interest Certificates
shall constitute the "regular interests" (within the meaning of Section
860G(a)(1) of the Code), and the REMIC III Residual Interest shall constitute
the sole "residual interest" (within the meaning of Section 860(G)(a)(2) of the
Code), in REMIC III. None of the parties hereto, to the extent it is within the
control thereof, shall create or permit the creation of any other "interests" in
REMIC III (within the meaning of Treasury regulation section 1.860D-1(b)(1)).
(d) The class designations for the respective classes of the REMIC III
Regular Interest Certificates are specified in Section 2.09.
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. The following table sets forth for each Class of Principal
Balance Certificates the initial Class Principal Balance thereof:
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CLASS INITIAL CLASS
DESIGNATION PRINCIPAL BALANCE
----------- -----------------
Class A-1A $210,310,000
Class A-1B $789,377,000
Class A-2 $ 51,596,000
Class A-3 $ 58,047,000
Class A-4 $ 16,124,000
Class B-1 $ 16,124,000
Class B-2 $ 25,798,000
Class B-3 $ 12,899,000
Class B-4 $ 33,861,000
Class B-5 $ 17,736,000
Class B-6 $ 9,674,000
Class B-7 $ 9,675,000
Class B-8 $ 16,124,000
Class B-9 $ 6,449,000
Class C $ 16,124,771
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by any distributions
of principal made with respect to such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable,
and, further, by any Unfunded Principal Balance Reduction made with respect to
such Class of Certificates on such Distribution Date pursuant to Section
4.04(a). Except as provided in the preceding sentence, the Class Principal
Balance of each Class of Principal Balance Certificates shall not otherwise be
increased or reduced. Distributions to the Holders of any such Class of
Principal Balance Certificates in reimbursement of any Unfunded Principal
Balance Reductions with respect to such Class of Certificates shall not
constitute distributions of principal and shall not result in any reduction of
the related Class Principal Balance.
The Class S Certificates shall not have a principal balance. For purposes
of accruing interest, however, the Class S Certificates shall have a Class
Notional Amount that is, as of any date of determination, equal to the total of
the then Uncertificated Principal Balances of all the REMIC II Regular
Interests.
(f) Each Class of REMIC III Regular Interest Certificates shall have a
Pass-Through Rate.
With respect to each Class of Principal Balance Certificates (other than
the Class A-3, Class A-4, Class B-1, Class B-2 and Class B-3 Certificates), the
related Pass-Through Rates for each Interest Accrual Period shall be fixed as
set forth below.
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CLASS FIXED PASS-THROUGH RATE
----- -----------------------
Class A-1A 6.930% per annum
Class A-1B 7.180% per annum
Class A-2 7.350% per annum
Class B-4 6.527% per annum
Class B-5 6.527% per annum
Class B-6 6.527% per annum
Class B-7 6.527% per annum
Class B-8 6.527% per annum
Class B-9 6.527% per annum
Class C 6.527% per annum
With respect to the Class A-3 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest A-3 and (ii) 7.500% per annum.
With respect to the Class A-4 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest A-4 and (ii) 7.600% per annum.
With respect to the Class B-1 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest B-1 and (ii) 7.950% per annum.
With respect to the Class B-2 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest B-2 and (ii) 8.000% per annum.
With respect to the Class B-3 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the REMIC II Remittance Rate in
effect during such Interest Accrual Period in respect of REMIC II Regular
Interest B-3.
With respect to the Class S Certificates, the related Pass-Through Rate for
each Interest Accrual Period shall equal the excess, if any, of (i) the weighted
average of the respective REMIC II Remittance Rates in effect during such
Interest Accrual Period in respect of all of the REMIC II Regular Interests,
over (ii) the weighted average of the respective Adjusted REMIC II Remittance
Rates in effect during such Interest Accrual Period in respect of all of the
REMIC II Regular Interests. For purposes of the foregoing, the relevant
weighting shall be based on the Uncertificated Principal Balance of each REMIC
II Regular Interest immediately prior to the related Distribution Date.
(g) Each Class of REMIC III Regular Interest Certificates shall bear
interest, and such interest shall commence accruing on November 1, 2000. In the
case of each Class of REMIC III Regular Interest Certificates, such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
shall accrue at the Pass-Through Rate with respect to such Class of Certificates
for such Interest Accrual Period on the Class Principal Balance (or, in the case
of the Class S Certificates, the Class Notional Amount) of such Class of
Certificates outstanding immediately prior to the related Distribution Date. The
total amount of such interest accrued with respect to each Class of REMIC III
Regular Interest Certificates during each Interest Accrual Period (herein
referred to as the "Interest
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Accrual Amount" with respect to such Class of Certificates for such Interest
Accrual Period) shall equal 1/12 of the product of (i) the Pass-Through Rate
with respect to such Class of Certificates for such Interest Accrual Period,
multiplied by (ii) the Class Principal Balance (or, in the case of the Class S
Certificates, the Class Notional Amount) of such Class of Certificates
outstanding immediately prior to the related Distribution Date. The portion of
the Interest Accrual Amount with respect to any Class of REMIC III Regular
Interest Certificates for any Interest Accrual Period that shall be
distributable to the Holders thereof on the related Distribution Date pursuant
to Section 4.01(a) or Section 4.01(b), as applicable, shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
Class of Certificates for the related Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such Class of Certificates for the
related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such Class of Certificates. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated among all the Classes of REMIC III Regular
Interest Certificates on a pro rata basis in accordance with their respective
Interest Accrual Amounts for the related Interest Accrual Period. If the entire
Current Interest Distribution Amount with respect to any Class of REMIC III
Regular Interest Certificates for any Distribution Date is not distributed to
the Holders thereof on such Distribution Date pursuant to Section 4.01(a) or
Section 4.01(b), as applicable, then the unpaid portion of such Current Interest
Distribution Amount shall be added to, and be payable as part of, the
Carryforward Interest Distribution Amount with respect to such Class of
Certificates for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date shall be an amount equal to the excess,
if any, of (i) all Current Interest Distribution Amounts with respect to such
Class of Certificates for all prior Distribution Dates, if any, over (ii) the
total amount of interest distributed to the Holders of such Class of
Certificates on all such prior Distribution Dates, if any, pursuant to Section
4.01(a) or Section 4.01(b), as applicable.
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of REMIC
III Regular Interest Certificates shall be the Rated Final Distribution Date.
(i) The REMIC III Residual Interest shall not have a principal balance and
shall not bear interest.
SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of the
Class D, Class E and Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of any collections of Post-ARD Additional Interest received on
the ARD Loans constitute a Grantor Trust for federal income tax purposes and,
further, that such segregated pool of assets be designated as "Grantor Trust D".
The Trustee, by its execution and delivery hereof, acknowledges the assignment
to it of the assets of Grantor Trust D and declares that it holds and will hold
such assets in trust for the exclusive use and benefit of all present and future
Holders of the Class D Certificates. Concurrently with the assignment to it of
the assets included in Grantor Trust D, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, to or upon the order of
the Depositor, the Class D Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust D. The rights of the Holders of
the Class D Certificates to receive distributions from the proceeds of Grantor
Trust D, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
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(b) It is the intention of the parties hereto that the segregated pool of
assets consisting of any collection of the Holiday Inn Orlando Closing Fee
constitute a Grantor Trust for federal income tax purposes and, further, that
such segregated pool of assets be designated as "Grantor Trust E". The Trustee,
by its execution and delivery hereof, acknowledges the assignment to it of the
assets of Grantor Trust E and declares that it holds and will hold such assets
in trust for the exclusive use and benefit of all present and future Holders of
the Class E Certificates. Concurrently with the assignment to it of the assets
included in Grantor Trust E, the Trustee shall execute, and the Certificate
Registrar shall authenticate and deliver, to or upon the order of the Depositor,
the Class E Certificates in authorized denominations evidencing the entire
beneficial ownership of Grantor Trust E. The rights of the Holders of the Class
E Certificates to receive distributions from the proceeds of Grantor Trust E,
and all ownership interests of such Holders in and to such distributions, shall
be as set forth in this Agreement.
(c) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual Interest to
the Trustee for the benefit of the Holders of the Class R Certificates. It is
the intention of the parties hereto that the segregated pool of assets
consisting of the REMIC I Residual Interest, the REMIC II Residual Interest and
the REMIC III Residual Interest constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust R". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust R and declares
that it holds and will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class R Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
R, the Trustee shall execute, and the Certificate Registrar shall authenticate
and deliver, to or upon the order of the Depositor, the Class R Certificates in
authorized denominations evidencing the entire beneficial ownership of Grantor
Trust R. The rights of the Holders of the Class R Certificates to receive
distributions from the proceeds of Grantor Trust R, and all ownership interests
of such Holders in and to such distributions, shall be as set forth in this
Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement, for the benefit of the
Certificateholders (as a collective whole), in accordance with: (i) any and all
applicable laws; (ii) the express terms of this Agreement and the respective
Mortgage Loans; and (iii) to the extent consistent with the foregoing, the
Servicing Standard. The Master Servicer or Special Servicer, as applicable in
accordance with this Agreement, shall service and administer each
Cross-Collateralized Group as a single Mortgage Loan as and when necessary and
appropriate consistent with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Performing Mortgage Loans, and (ii) the Special Servicer
shall service and administer (x) each Mortgage Loan as to which a Servicing
Transfer Event has occurred and is continuing, and (y) each REO Property;
provided that the Master Servicer shall continue to collect information and
prepare all reports to the Trustee required of the Master Servicer hereunder
with respect to Specially Serviced Mortgage Loans and REO Properties (and the
related REO Mortgage Loans) and, further, to render such incidental services
with respect to Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein; and provided, further, that the Special
Servicer shall render such incidental services with respect to Performing
Mortgage Loans as are specifically provided for herein. The Master Servicer
shall not, on behalf of the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Mortgage Loans) and the Special Servicer (with
respect to Specially Serviced Mortgage Loans), in its own name or in the name of
the Trustee, is hereby authorized and empowered by the Trustee to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them: (i)
any and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by any Mortgage or other
security document in the related Mortgage File on the related Mortgaged Property
and other related collateral; (ii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments; and (iii) subject to Sections 3.08 and 3.20, any and all
assumptions, modifications, waivers, substitutions, extensions, amendments and
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided, that the Trustee shall not be held
liable for any misuse of any such power of attorney by the Master Servicer or
the Special Servicer.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
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SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Mortgage Loans) and the
Special Servicer (with respect to Specially Serviced Mortgage Loans) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans and shall follow such collection procedures
as are consistent with the Servicing Standard; provided that neither the Master
Servicer nor the Special Servicer shall, with respect to any ARD Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Post-ARD Additional Interest (other than the making of requests for
its collection), unless (i) the taking of an enforcement action with respect to
the payment of other amounts due under such Mortgage Loan is, in the good faith
and reasonable judgment of the Special Servicer, and without regard to such
Post-ARD Additional Interest, also necessary, appropriate and consistent with
the Servicing Standard or (ii) all other amounts due under such Mortgage Loan
have been paid, the payment of such Post-ARD Additional Interest has not been
forgiven in accordance with Section 3.20 and, in the good faith and reasonable
judgment of the Special Servicer, the Liquidation Proceeds expected to be
recovered in connection with such enforcement action will cover the anticipated
costs of such enforcement action and, if applicable, any associated Advance
Interest. Consistent with the foregoing, the Master Servicer (as to Performing
Mortgage Loans) and the Special Servicer (as to Specially Serviced Mortgage
Loans) each may waive any Default Charges in connection with any specific
delinquent payment on a Mortgage Loan it is obligated to service hereunder.
(b) At least ninety days prior to the maturity date of each Balloon
Mortgage Loan, the Master Servicer shall send a notice to the related Borrower
of such maturity date (with a copy to be sent to the Special Servicer) and shall
request confirmation that the Balloon Payment will be paid by such maturity
date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), in which all Escrow Payments received by it with
respect to the Mortgage Loans shall be deposited and retained. Subject to any
terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums (including, premiums on any Environmental Insurance Policy), ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby with respect to such Mortgage Loan to cover any of the
items described in the immediately preceding clause (i); (iii) to refund to the
related Borrower any sums as may be determined to be overages; (iv) to pay
interest or other income, if required and as described below, to the related
Borrower on balances in the Servicing Account (or, if and to the extent not
payable to the related Borrower to pay such interest or other income (up to the
amount of any Net Investment Earnings in respect of such Servicing Account for
each Collection Period) to the Master Servicer); or (v) to clear and terminate
the Servicing Account at the termination of this Agreement in accordance with
Section 9.01. The Master Servicer shall pay or cause to be paid to the Borrowers
interest and other income, if any, earned on the investment of funds in
Servicing Accounts maintained thereby, if and to the extent required by law or
the terms of the related Mortgage
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Loan. If the Master Servicer shall deposit in a Servicing Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
Promptly after any Escrow Payments are received by the Special Servicer from any
Borrower, and in any event within two Business Days after any such receipt, the
Special Servicer shall remit such Escrow Payments to the Master Servicer for
deposit in the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including each
Specially Serviced Mortgage Loan) (i) maintain accurate records with respect to
the related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan documents; provided that if such Mortgage Loan does not require
the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Borrower make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, the Master Servicer shall
make a Servicing Advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Mortgage Loan) all such
funds as are necessary for the purpose of effecting the timely payment of (i)
real estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies (including, premiums on
any Environmental Insurance Policy), in each instance prior to the applicable
penalty or termination date if and to the extent that (x) Escrow Payments (if
any) collected from the related Borrower are insufficient to pay such item when
due, and (y) the related Borrower has failed to pay such item on a timely basis;
provided that, in the case of amounts described in the preceding clause (i), the
Master Servicer shall not make a Servicing Advance of any such amount if the
Master Servicer reasonably anticipates (in accordance with the Servicing
Standard) that such amounts will be paid by the related Borrower on or before
the applicable penalty date, in which case the Master Servicer shall use its
best efforts consistent with the Servicing Standard to confirm whether such
amounts have been paid and shall make a Servicing Advance of such amounts, if
necessary, not later than five Business Days following confirmation by the
Master Servicer that such amounts have not been paid by the applicable penalty
date. In no event shall the Master Servicer be required to make any Servicing
Advance under this Section 3.03(c) to the extent such advance would, if made,
constitute a Non-recoverable Servicing Advance. All such Advances shall be
reimbursable in the first instance from related collections from the Borrowers
and further as provided in Section 3.05(a). No costs incurred by the Master
Servicer in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the respective unpaid principal balances or
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit; provided that this sentence shall
not be construed to limit the rights of the Master Servicer on behalf of the
Trust to enforce any obligations of the related Borrower under such Mortgage
Loan.
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(d) The Master Servicer shall establish and maintain, as applicable, one or
more accounts (the "Reserve Accounts"), in which all Reserve Funds, if any,
shall be deposited and retained. As and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, the Master Servicer
may make withdrawals of amounts so deposited, and draws under any Letter of
Credit delivered in lieu of Reserve Funds, to pay for, or to reimburse the
related Borrower in connection with, the costs associated with the related
tenant improvements, leasing commissions, repairs, replacements, capital
improvements and/or environmental testing and remediation, litigation and/or
other special expenses at or with respect to the related Mortgaged Property for
which such Reserve Funds were intended or such Letter of Credit was delivered
and, in the case of a Reserve Fund constituting debt service reserve accounts,
to apply amounts on deposit therein in respect of principal and interest on the
related Mortgage Loan. In addition, as and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, the Master Servicer
may make withdrawals of amounts so deposited, and draws under any Letter of
Credit so delivered, to prepay the Mortgage Loan in the event certain leasing or
other economic criteria are not satisfied at the related Mortgaged Property, or
to release such amounts to the related Borrower or otherwise apply such amounts
for any other appropriate purpose in the event that such criteria are satisfied,
and the Master Servicer may return any Letter of Credit so delivered to the
related Borrower. Subject to the terms of the related Mortgage Loan documents,
each Reserve Account shall be an Eligible Account. Interest and other income, if
any, earned on funds on deposit in any Reserve Account held by the Master
Servicer (to the extent of any Net Investment Earnings with respect to such
Reserve Account for any Collection Period), shall be for the benefit of and
payable to the Master Servicer, unless otherwise required to be paid to the
related Borrower by law or the terms of the related Mortgage Loan. Any
out-of-pocket expenses incurred by the Master Servicer to enable the Master
Servicer to make any draw under any Letter of Credit shall constitute a
Servicing Advance, and the Master Servicer shall make reasonable efforts to
recover such expenses from the related Borrower to the extent the Borrower is
required to pay such expenses under the terms of the related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Borrower written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any other
action or remediation with respect to environmental matters is required to have
been taken or completed pursuant to the terms of the related Mortgage Loan
documents, the Master Servicer shall request from the Borrower written
confirmation of such action and remediations within a reasonable time after the
later of the Closing Date and the date as of which such action or remediations
are required to have been taken or completed. To the extent that a Borrower
shall fail to promptly respond to any inquiry described in this Section 3.03(e),
the Master Servicer shall notify the Trustee, the Special Servicer and the
Controlling Class Representative. The Master Servicer shall promptly notify the
Trustee, the Special Servicer and the Controlling Class Representative if the
Master Servicer shall determine that any Borrower has failed to perform its
obligations under the related Mortgage Loan in respect of environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage Loan
documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
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SECTION 3.04. Collection Account, Distribution Account, Interest Reserve
Account and Excess Liquidation Proceeds Account.
(a) The Master Servicer shall segregate and hold all funds collected and
received in connection with the Mortgage Pool separate and apart from its own
funds and general assets. In connection therewith, the Master Servicer shall
establish and maintain one or more segregated accounts (collectively, the
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within one Business Day of receipt (in the
case of payments by Borrowers or other collections on the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of the Master Servicer in respect of the Mortgage Pool
subsequent to the Closing Date (other than in respect of scheduled payments of
principal and interest due and payable on the Mortgage Loans on or before their
respective Due Dates in November 2000 (or, in the case of a Replacement Mortgage
Loan, on or before the related date of substitution), which payments shall be
delivered promptly to the related Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans,
including Default Interest and Post-ARD Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans and the Holiday
Inn Orlando Closing Fee;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master force place
hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Borrower.
The foregoing requirements for deposit in the Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earnout fees, extension fees,
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modification fees, charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, need not be deposited by
the Master Servicer in the Collection Account. The Master Servicer shall
promptly deliver to the Special Servicer any of the foregoing items received by
it, if and to the extent that such items constitute Additional Special Servicing
Compensation. If the Master Servicer shall deposit in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through (iv)
and (viii) of the first paragraph of this Section 3.04(a) with respect to any
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
one Business Day after receipt, remit such amounts to the Master Servicer for
deposit into the Collection Account, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement. With respect to any such amounts
paid by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer (in its capacity as
such), without recourse, representation or warranty, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
cannot be so endorsed and delivered because of a restrictive endorsement. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Collection Account pursuant to Section
3.16(c).
(b) The Trustee shall establish and maintain one or more segregated
accounts (collectively, the "Distribution Account"), to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Trustee shall, as a
bookkeeping matter, establish and maintain three sub-accounts of the
Distribution Account (i) one of which sub-accounts (such sub-account, the "REMIC
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the REMIC III Regular Interest Certificates and the Class R Certificates,
(ii) one of which sub-accounts (such sub-account, the "Class D Sub-Account")
shall be deemed to be held in trust for the benefit of the Holders of the Class
D Certificates and (iii) one of which sub-accounts (such sub-account, the "Class
E Sub-Account") shall be deemed to be held in trust for the benefit of the
Holders of the Class E Certificates. By 2:00 p.m. (New York City time) on each
Master Servicer Remittance Date, the Master Servicer shall deliver to the
Trustee, for deposit in the Distribution Account, an aggregate amount of
immediately available funds equal to the Master Servicer Remittance Amount for
such Master Servicer Remittance Date. Immediately upon deposit of the Master
Servicer Remittance Amount for any Master Servicer Remittance Date into the
Distribution Account, any portion thereof that represents any Post-ARD
Additional Interest related to the ARD Loans shall be deemed to have been
deposited into the Class D Sub-Account, any portion thereof that represents any
payment of the Holiday Inn Orlando Closing Fee shall be deemed to have been
deposited into the Class E Sub-Account, and the remaining portion thereof shall
be deemed to have been deposited into the REMIC Sub-Account. In addition, the
Master Servicer shall, as and when required hereunder, deliver to the Trustee
for deposit in the Distribution Account any P&I Advances and Compensating
Interest Payments required to be made by the Master Servicer hereunder.
Furthermore, any amounts paid by any party hereto to indemnify the Trust Fund
pursuant to any provision hereof shall be delivered to the Trustee for deposit
in the Distribution Account. The Trustee shall, upon receipt, deposit in the
Distribution Account any and all amounts received or, pursuant to Section 4.03,
advanced by the Trustee or any Fiscal Agent that are required by the terms of
this Agreement to be deposited therein. As and when required pursuant to Section
3.05(c), the Trustee shall transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans from the Interest Reserve Account to the Distribution
Account. Furthermore, as and when
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required pursuant to Section 3.05(d), the Trustee shall transfer monies from the
Excess Liquidation Proceeds Account to the Distribution Account. If the Trustee
shall deposit in the Distribution Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Distribution
Account, any provision herein to the contrary notwithstanding.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2001, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date.
(d) If any Excess Liquidation Proceeds are received, the Trustee shall
establish and maintain one or more accounts (collectively, the "Excess
Liquidation Proceeds Account") to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Collection Account
and remit to the Trustee for deposit in the Excess Liquidation Proceeds Account
all Excess Liquidation Proceeds received during the Collection Period ending on
the Determination Date immediately prior to such Master Servicer Remittance
Date.
(e) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall remain uninvested. The Master Servicer shall give notice
to the other parties hereto of the location of the Collection Account as of the
Closing Date and of the new location of the Collection Account prior to any
change thereof. The Distribution Account, Interest Reserve Account and Excess
Liquidation Proceeds Account shall each be established at the Corporate Trust
Office of the Trustee as of the Closing Date, and the Trustee shall give notice
to the other parties hereto of the new location of each of the Distribution
Account, Interest Reserve Account and Excess Liquidation Proceeds Account prior
to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account, the
Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for each Master Servicer Remittance
Date and any amounts that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for unreimbursed P&I Advances made thereby (in each case, with
its own funds), the Master Servicer's, the Trustee's and any Fiscal
Agent's, as the case may be, respective rights to
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reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable P&I Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest and principal received in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made
(net of related Master Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Mortgage Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any Mortgage
Loan or REO Mortgage Loan being limited to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds) or such REO
Mortgage Loan (whether in the form of REO Revenues, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds) that are allocable as
interest thereon;
(iv) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, earned and unpaid Special Servicing
Fees in respect of each Specially Serviced Mortgage Loan and REO Mortgage
Loan;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is
entitled pursuant to, and from the sources contemplated by, the second and
third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds), the Master Servicer's, the
Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may
be, respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances, which are reimbursable pursuant to clause (vii) below) being
limited to (A) payments made by the related Borrower that are allocable to
cover the item in respect of which such Servicing Advance was made, and (B)
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
(vii) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, for any unreimbursed Advances made thereby
that have been determined to be Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer, the Trustee or any Fiscal
Agent, as applicable, any Advance Interest then due and owing to such
Person, the Master Servicer's, the Special Servicer's, the Trustee's and
any Fiscal Agent's, as the case may be, out of Default Charges collected on
the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the
related Advance was made, as and to the extent contemplated by Section
3.26;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or pursuant to Section
3.03(c), and insofar as payment has not already been made, and the related
Default
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Charges then on deposit in the Collection Account are not sufficient to
make such payment pursuant to clause (viii) above, to pay itself, the
Special Servicer, the Trustee or such Fiscal Agent, as the case may be, out
of general collections on the Mortgage Loans and any REO Properties, any
related Advance Interest accrued and payable on the portion of such Advance
so reimbursed or being reimbursed;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in the Collection
Account from time to time;
(xi) to pay any unpaid Liquidation Expenses incurred with respect to
any Mortgage Loan or REO Property, such payments to be made, first, out of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if
applicable, REO Revenues received in respect of such Mortgage Loan or REO
Property, as the case may be, and then, out of general collections on other
Mortgage Loans and REO Properties;
(xii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties, certain servicing
expenses that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(xiii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance);
(xiv) to pay itself, the Special Servicer, the Special Sub-Servicer,
the Depositor, the Trustee, any Fiscal Agent, or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties, any amounts payable to any such Person pursuant to Section
6.03, Section 7.01(b), Section 8.05(b), or Section 8.13, as applicable;
(xv) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for the cost of the Opinion of Counsel contemplated by
Section 11.02(a);
(xvi) to pay, out of general collections on the Mortgage Loans and REO
Properties, for the cost of recording this Agreement in accordance with
Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, any reasonable out-of-pocket cost or expense (including
the reasonable fees of tax accountants and attorneys) incurred by the
Trustee pursuant to Section 3.17(a)(iii) in connection with providing
advice to the Special Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Special Sub-Servicer, the Trustee, any Fiscal Agent or the Depositor, as
the case may be, any amount specifically required to be paid to such Person
at the expense of the Trust Fund under any provision of this Agreement to
which reference is not made in any other clause of this Section 3.05(a), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
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(xix) to pay itself, the Special Servicer, any Mortgage Loan Seller,
Union Capital, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage Loan,
if any, previously purchased or otherwise removed from the Trust Fund by
such Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(d); and
(xxi) to clear and terminate the Collection Account at the termination
of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular time
(after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xix),
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (y) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (z) if the payment, reimbursement or remittance can be made from any funds
on deposit in the Collection Account, then (following any withdrawals made from
the Collection Account in accordance with the immediately preceding clause (y)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of the Collection Account pursuant to any of clauses (ii), (vi) and
(vii) above, and any payments of interest thereon out of the Collection Account
pursuant to either of clauses (viii) and (ix) above, shall be made (to the
extent of their respective entitlements to such reimbursements and/or payments):
first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the
Master Servicer and Special Servicer.
The Master Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Collection Account pursuant to any of clauses (ii)
through (xix) above.
In connection with the Special Servicer's assignment of rights and
delegation of duties and obligations to the Special Sub-Servicer, pursuant to
the Special Sub-Servicing Agreement and as and to the extent contemplated by
Section 3.22(f), and until the Special Servicer provides written directions to
the contrary, the Special Servicer hereby authorizes and directs the Master
Servicer to withdraw from the Collection Account and pay directly to the Special
Sub-Servicer any and all items that are payable to the Special Sub-Servicer
pursuant to Section 5.02 of the Special Sub-Servicing Agreement and that the
Master Servicer would otherwise withdraw and pay to the Special Servicer
pursuant to this Section 3.05(a).
The Master Servicer shall pay to the Special Servicer or the Special
Sub-Servicer, as applicable, from the Collection Account amounts permitted to be
paid to it therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer or the Special Sub-Servicer, as applicable,
describing the item and amount to which the Special Servicer or the Special
Sub-Servicer, as
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applicable, is entitled. The Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated therein.
The Special Servicer and the Special Sub-Servicer shall each keep and maintain
separate accounting for each Specially Serviced Mortgage Loan and REO Property,
on a loan-by-loan and property-by-property basis, for the purpose of justifying
any request thereby for withdrawal from the Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 8.05, including the Trustee's Fee;
(iii) to pay any Fiscal Agent or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Sections 8.05(b) and/or
8.13(a);
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Trustee which amendment is
in furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(vi) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2001), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Trustee shall withdraw from the Interest Reserve Account and deposit in the
Distribution Account all Interest Reserve Amounts in respect of the Interest
Reserve Loans then on deposit in the Interest Reserve Account.
(d) On the Business Day prior to each Distribution Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Distribution Account, for distribution on such Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable on such Distribution Date pursuant to Sections
4.01(a) and 4.01(b), over the Standard
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Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit in the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account.
(e) The Trustee, any Fiscal Agent, the Depositor, the Master Servicer, the
Special Servicer and the Special Sub-Servicer, as applicable, shall in all cases
have a right prior to the Certificateholders to any particular funds on deposit
in the Collection Account and the Distribution Account from time to time for the
reimbursement or payment of compensation, Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder, but only if and to
the extent such compensation, Advances (with interest) and expenses are to be
reimbursed or paid from such particular funds on deposit in the Collection
Account or the Distribution Account pursuant to the express terms of this
Agreement.
SECTION 3.06. Investment of Funds in the Collection Account, Servicing
Accounts, Reserve Accounts and the REO Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depositary institution (including the Trustee) maintaining the
Collection Account or any Servicing Account or Reserve Account held by it, and
the Special Servicer may direct (pursuant to a standing order or otherwise) any
depositary institution maintaining the REO Account, to invest, or if it is such
depositary institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") in (but
only in) one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement or the related
Mortgage Loan documents, as applicable; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the Master Servicer or Special Servicer, as applicable, gives timely
investment instructions with respect thereto pursuant to this Section 3.06. All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds in an Investment Account shall be made in the name of
the Trustee (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Collection Account, the Servicing
Accounts and the Reserve Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), acting on behalf of the
Trustee, shall (and Trustee hereby designates the Master Servicer and the
Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of, the Trustee for purposes of Revised Article 8 (1994 Revision) of the
UCC. If amounts on deposit in an Investment Account are at any time invested in
a Permitted Investment payable on demand, the Master Servicer (in the case of
the Collection Account or any Servicing Account or Reserve Account) or the
Special Servicer (in the case of the REO Account) shall:
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(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount at least equal to the lesser of (1)
all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of funds in
the Collection Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Master Servicer directs
the investment of funds in any Servicing Account or Reserve Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, and subject to the requirements of applicable law or the terms of the
related Mortgage Loan regarding the payment of such interest and investment
income to the related Borrower, shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to withdrawal from time to time in
accordance with Section 3.03. Whether or not the Special Servicer directs the
investment of funds in the REO Account, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for such Investment Account for each Collection Period, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account (other
than a loss of what would otherwise have constituted investment earnings), the
Master Servicer (in the case of the Collection Account and any Servicing Account
or Reserve Account) and the Special Servicer (in the case of the REO Account)
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, in respect of
such Investment Account for such Collection Period (or, in the case of a
Servicing Account or Reserve Account, the entire amount of such loss), except
(in the case of any such loss with respect to a Servicing Account or Reserve
Account) to the extent the loss amounts were invested for the benefit of a
Borrower under the terms of a Mortgage Loan or applicable law and such Borrower
has no recourse against the Trust in respect of such loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment, and if the Master Servicer (if such
default is in respect of a Permitted Investment of funds in the Collection
Account or in any Reserve Account or Servicing Account) or the Special Servicer
(if such default is in respect of a Permitted Investment of funds in the REO
Account), as applicable, is in default of its obligations under Section 3.06(b),
the Trustee may (and, subject to Section 8.02, upon the request of Holders of
Certificates entitled to not less than 25% of the Voting Rights allocated to any
Class of REMIC III Regular Interest Certificates, the Trustee shall) take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate legal proceedings. Any costs
incurred by the Trustee in taking any such action shall be reimbursed to it by
the Master Servicer if the default is in respect of a Permitted Investment of
funds in the Collection Account or in any Reserve Account or Servicing Account
or by the Special Servicer if the default is in respect of
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a Permitted Investment of funds in the REO Account. This provision is in no way
intended to limit any actions that the Master Servicer or Special Servicer may
take in this regard at its own expense.
(d) Amounts on deposit in the Distribution Account, the Interest Reserve
Account and the Excess Liquidation Proceeds Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any Investment Account,
for purposes of the calculations hereunder, including the calculation of the
Standard Available Distribution Amount and the Master Servicer Remittance
Amount, the amounts so invested shall be deemed to remain on deposit in such
Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause each Borrower to maintain, and, if the Borrower does
not so maintain, the Master Servicer will itself cause to be maintained, for
each Mortgaged Property (including each Mortgaged Property relating to any
Specially Serviced Mortgage Loan) all insurance coverage as is required, subject
to applicable law, under the related Mortgage Loan documents; provided that, if
and to the extent that any such Mortgage permits the holder thereof any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Borrower is required to maintain, the Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard, with a view towards requiring insurance comparable to that required
under other Mortgage Loans with express provisions governing such matters and,
in any event, business interruption or rental loss insurance for at least 12
months; and provided, further, that, if and to the extent that a Mortgage so
permits, the related Borrower shall be required to obtain the required insurance
coverage from Qualified Insurers that, in each case, have a financial strength
or claims-paying rating no lower than two rating categories below the highest
rated Certificates outstanding, and in any event no lower than "A" from Fitch
and "A2" from Moody's (or in such other form and amount or issued by an insurer
with such other financial strength or claims-paying ability as would not, as
confirmed in writing by the relevant Rating Agency, result in an Adverse Rating
Event); and provided, further, that the Master Servicer shall be required to
maintain such insurance coverage upon the related Borrower's failure to do so
only to the extent that such insurance is available at commercially reasonable
rates and the Trustee as mortgagee has an insurable interest). Subject to
Section 3.17(b), the Special Servicer shall also cause to be maintained for each
REO Property no less insurance coverage (to the extent available at commercially
reasonable rates) than was previously required of the Borrower under the related
Mortgage and, at a minimum, (i) hazard insurance with a replacement cost rider,
(ii) business interruption or rental loss insurance for at least 12 months, and
(iii) commercial general liability insurance, in each case, in an amount
customary for the type and geographic location of such REO Property and
consistent with the Servicing Standard; provided that all such insurance shall
be obtained from Qualified Insurers that, in each case, shall have a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch and "A2" from Moody's (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying ability as would
not, as confirmed in writing by the relevant Rating Agency, result in an Adverse
Rating Event). All such insurance policies shall contain (if they insure against
loss to property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans), or shall name the Trustee as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (in the case of
insurance maintained in respect
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of REO Properties), and shall be issued by an insurer authorized under
applicable law to issue such insurance. Any amounts collected by the Master
Servicer or the Special Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Borrower, in each case in
accordance with the Servicing Standard) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to unpaid principal balance or Stated Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of the Master
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan. Costs to the Master Servicer or the Special
Servicer of maintaining insurance policies pursuant to this Section 3.07 shall
be paid by and reimbursable to the Master Servicer or the Special Servicer, as
the case may be, as a Servicing Advance.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a financial strength or claims-paying rating no lower than "A" from Fitch and
"A2" from Moody's or having such other financial strength or claims-paying
ability rating as would not, as confirmed in writing by the relevant Rating
Agency, result in an Adverse Rating Event, and (ii) provides protection
equivalent to the individual policies otherwise required, the Master Servicer or
the Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
related Mortgaged Properties or REO Properties, as applicable. Such policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a hazard insurance policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses that would have been covered by
such an individual policy, promptly deposit into the Collection Account from its
own funds the amount not otherwise payable under the blanket or master force
placed policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket or master force
placed policy in a timely fashion in accordance with the terms of such policy.
(c) On or before the Closing Date, with respect to each of the Mortgage
Loans covered by an Environmental Insurance Policy, the Master Servicer shall
notify the insurer under such Environmental Insurance Policy and take all other
action necessary for the Trustee, on behalf of the Certificateholders, to be an
insured (and for the Master Servicer, on behalf of the Trust, to make claims)
under such Environmental Insurance Policy. In the event that the Master Servicer
has actual knowledge of any event (an "Insured Environmental Event") giving rise
to a claim under any Environmental Insurance Policy in respect of any Mortgage
Loan covered thereby, the Master Servicer shall, in accordance with the terms of
such Environmental Insurance Policy and the Servicing Standard, timely make a
claim thereunder with the appropriate insurer and shall take such other actions
in accordance
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with the Servicing Standard which are necessary under such Environmental
Insurance Policy in order to realize the full value thereof for the benefit of
the Certificateholders. Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with any such
claim under an Environmental Insurance Policy shall be paid by the Master
Servicer and shall be reimbursable to it as a Servicing Advance. With respect to
each Environmental Insurance Policy that relates to one or more Mortgage Loans,
the Master Servicer shall review and familiarize itself with the terms and
conditions relating to enforcement of claims and shall monitor the dates by
which any claim must be made or any action must be taken under such policy to
realize the full value thereof for the benefit of the Certificateholders in the
event the Master Servicer has actual knowledge of an Insured Environmental Event
giving rise to a claim under such policy.
In the event that the Master Servicer receives notice of any termination of
any Environmental Insurance Policy that relates to one or more Mortgage Loans,
the Master Servicer shall, within five Business Days after receipt of such
notice, notify the Special Servicer, the Controlling Class Representative, the
Rating Agencies and the Trustee of such termination in writing. Upon receipt of
such notice, the Master Servicer shall address such termination in accordance
with Section 3.07(a) in the same manner as it would the termination of any other
Insurance Policy required under the related Mortgage Loan documents. Any legal
fees, premiums or other out-of-pocket costs incurred in accordance with the
Servicing Standard in connection with a resolution of such termination of an
Environmental Insurance Policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
(d) Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force
with a Qualified Insurer having a financial strength or claims-paying rating no
lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from Fitch and "A2" from
Moody's, a fidelity bond in such form and amount as would permit it to be a
qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying ability rating as would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency)). Each of the Master Servicer and the
Special Servicer shall be deemed to have complied with the foregoing provision
if an Affiliate thereof has such fidelity bond coverage and, by the terms of
such fidelity bond, the coverage afforded thereunder extends to the Master
Servicer or the Special Servicer, as the case may be. Such fidelity bond shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee.
Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from Fitch and "A2" from
Moody's, a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers and employees in connection with its
servicing obligations hereunder, which policy or policies shall be in such form
and amount as would permit it to be a qualified Fannie Mae seller-servicer of
multifamily mortgage loans (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying rating as would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the
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Trustee by the relevant Rating Agency)). Each of the Master Servicer and the
Special Servicer shall be deemed to have complied with the foregoing provisions
if an Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (with respect to Performing Mortgage Loans) and the
Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf
of the Trustee as the mortgagee of record, shall enforce any restrictions,
contained in the related Mortgage or other related loan document on transfers or
further encumbrances of the related Mortgaged Property and on transfers of
interests in the related Borrower, unless the Master Servicer or the Special
Servicer, as the case may be, has determined, in its reasonable, good faith
judgment, that waiver of such restrictions would be in accordance with the
Servicing Standard; provided that neither the Master Servicer nor the Special
Servicer shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-encumbrance" clause until it has
received written confirmation from each Rating Agency that such action would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and provided, further, that neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, under any related "due-on-sale" clause until it
has received written confirmation from each Rating Agency that such action would
not result in an Adverse Rating Event with respect to any Class of Rated
Certificates, if such "due-on-sale" clause involves any Mortgage Loan that,
individually or together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower
as such Mortgage Loan or have Borrowers that are known to be affiliated with the
Borrower under such Mortgage Loan, has an outstanding principal balance in
excess of $20,000,000 (or, subject to the related loan documents, if less than
$20,000,000, in excess of 2% of the then aggregate Stated Principal Balance of
the Mortgage Pool); and provided, further, that, subject to the related Mortgage
Loan documents and applicable law, neither the Master Servicer nor the Special
Servicer shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-sale" or "due-on-encumbrance"
clause under any Mortgage Loan, or approve the assumption of any Mortgage Loan,
unless in any such case, all associated costs and expenses are covered without
any expense to the Trust; and provided, further, that neither the Master
Servicer nor the Special Servicer shall (to the extent that it is within the
control thereof to prohibit such event) consent to the transfer of any Mortgaged
Property which secures a Cross-Collateralized Group unless all of the Mortgaged
Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Borrower. The Master Servicer and the Special
Servicer shall each provide the other with all such information as each may
reasonably request in order to make such determination.
In connection with any permitted assumption of a Mortgage Loan or waiver of
a "due-on-sale" or "due-on-encumbrance" clause, the Master Servicer (in the case
of a Performing Mortgage Loan) or the Special Servicer (in the case of a
Specially Serviced Mortgage Loan) shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Borrower for
the due execution and delivery of such documents.
If the Master Servicer or the Special Servicer collects an assumption fee
or an assumption application fee in connection with any transfer or proposed
transfer of any interest in a Borrower or a Mortgaged Property, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee
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to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Borrower and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses to the extent such fees and expenses are required to be
paid by the related Borrower under the related Mortgage Loan documents and the
Master Servicer or the Special Servicer, as applicable, fails to enforce such
requirement in accordance with such Mortgage Loan documents. Any remaining
portion of such assumption fee (such remaining portion, a "Net Assumption Fee")
or of such assumption application fee (such remaining portion, a "Net Assumption
Application Fee") will be applied as additional compensation to the Master
Servicer or the Special Servicer in accordance with Section 3.11. Neither the
Master Servicer nor the Special Servicer shall waive any assumption fee or
assumption application fee, to the extent it would constitute additional
compensation for the other such party, without the consent of such other party.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d) and 3.24, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection) unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. In connection with the
foregoing, in the event of a default under any Mortgage Loan or
Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties. The reasonable costs of such consultation shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. In
addition, all other costs and expenses incurred in any foreclosure sale or
similar proceeding shall be paid by, and reimbursable to, the Special Servicer
as a Servicing Advance. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
a bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by the
Special Servicer taking into account the factors described in Section 3.18(e)
and the results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
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(b) Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Special Servicer on behalf of the Trust under
such circumstances, in such manner or pursuant to such terms as would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (unless the portion of such REO
Property that is not treated as "foreclosure property" and that is held by REMIC
I at any given time constitutes not more than a de minimis amount of the assets
of REMIC I within the meaning of Treasury regulation Section 1.860D-1(b)(3)(i)
and (ii)), or (ii) except as permitted by Section 3.17(a), subject the Trust to
the imposition of any federal income or prohibited transaction taxes under the
Code. In addition, except as permitted under Section 3.17(a), the Special
Servicer shall not acquire any personal property on behalf of the Trust pursuant
to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not result in an Adverse REMIC Event with respect to
any REMIC Pool or in an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trust, obtain title to a Mortgaged Property by foreclosure, deed in
lieu of foreclosure or otherwise, or take any other action with respect to
any Mortgaged Property, if, as a result of any such action, the Trustee, on
behalf of the Certificateholders, could, in the reasonable, good faith
judgment of the Special Servicer, exercised in accordance with the
Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law,
unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) of such Mortgaged Property
conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments and performed during the 12-month period
preceding any such acquisition of title or other action, that the
Mortgaged Property is in compliance with applicable environmental laws
and regulations and there are no circumstances or conditions present
at the Mortgaged Property relating to the use, management or disposal
of Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations; or
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the Special Servicer has previously
determined in accordance with the Servicing Standard, on the same
basis as described in clause (c)(i) above, and taking into account the
coverage provided under the related Environmental Insurance Policy,
that it would maximize the recovery to the Certificateholders on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged
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Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by clause (i)
or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the Master Servicer and the
Controlling Class Representative, specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph shall be payable out of
the Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii) of the
first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master Servicer
and the Controlling Class Representative monthly in writing as to any actions
taken by the Special Servicer with respect to any Mortgaged Property as to which
neither of the conditions set forth in clauses (i) and (ii) of the first
paragraph of Section 3.09(c) has been satisfied, in each case until the earliest
to occur of satisfaction of either of such conditions, release of the lien of
the related Mortgage on such Mortgaged Property and the related Mortgage Loan's
becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of seeking to obtain a deficiency
judgment if the state in which the Mortgaged Property is located and the terms
of the Mortgage Loan permit such an action and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
(g) The Special Servicer shall prepare and file the information returns
with respect to the receipt of any mortgage interest received in a trade or
business from individuals, the reports of foreclosures and abandonments of any
Mortgaged Property and the information returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by Section
6050H, 6050J and 6050P of the Code and shall deliver to the Trustee an Officer's
Certificate stating that such reports have been filed. Such information returns
and reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code. The Master
Servicer shall promptly provide to the Special Servicer on a timely basis all
information in the Master Servicer's possession to be included in such reports
and information returns.
(h) As soon as the Special Servicer makes a Final Recovery Determination
with respect to any Mortgage Loan or REO Property, it shall promptly notify the
Trustee, the Master Servicer and the Controlling Class Representative. The
Special Servicer shall maintain accurate records,
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prepared by a Servicing Officer, of each such Final Recovery Determination (if
any) and the basis thereof. Each such Final Recovery Determination (if any)
shall be evidenced by an Officer's Certificate delivered to the Trustee and the
Master Servicer no later than the third Business Day following such Final
Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall promptly so notify
the Trustee and request delivery to it or its designee of the related Mortgage
File (such notice and request to be effected by delivering to the Trustee a
Request for Release in the form of Exhibit D-1 attached hereto, which Request
for Release shall be accompanied by the form of any release or discharge to be
executed by the Trustee and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to Section 3.04(a)
have been or will be so deposited). Upon receipt of such Request for Release,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or its designee and shall
deliver to the Master Servicer or its designee such accompanying release or
discharge, duly executed. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Master Servicer and receipt from the Master Servicer of a Request for
Release in the form of Exhibit D-1 attached hereto signed by a Servicing Officer
thereof, or upon request of the Special Servicer and receipt from the Special
Servicer of a Request for Release in the form of Exhibit D-2 attached hereto,
the Trustee shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be, or its designee. Upon return of such Mortgage File
(or portion thereof) to the Trustee or the related Custodian, or upon the
Special Servicer's delivery to the Trustee of an Officer's Certificate stating
that (i) such Mortgage Loan was liquidated and all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account pursuant to Section 3.04(a) have been or will be so
deposited or (ii) such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be returned by the Trustee to the Master Servicer or
the Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request therefor
(or, if the Special Servicer notifies the Trustee of an exigency, within such
shorter period as is reasonable under the circumstances), the Trustee shall
execute and deliver to the Special Servicer, in the form supplied to the Trustee
by the Special Servicer, any court pleadings, requests for trustee's sale or
other documents reasonably necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Borrower on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity or to
defend any legal action or counterclaim filed against the Trust, the Master
Servicer or the Special Servicer; provided that the Trustee may alternatively
execute and deliver to the Special Servicer, in the form supplied to the Trustee
by the Special Servicer, a limited power of attorney issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the
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Trustee (however, the Trustee shall not be liable for any misuse of such power
of attorney by the Special Servicer). Together with such pleadings or documents
(or such power of attorney empowering the Special Servicer to execute the same
on behalf of the Trustee), the Special Servicer shall deliver to the Trustee an
Officer's Certificate requesting that such pleadings or documents (or such power
of attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest
on and Reimbursement of Servicing Advances; Payment of
Certain Expenses; Obligations of the Trustee and any Fiscal
Agent Regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Master Servicing Fee with respect to each Mortgage
Loan (including each Specially Serviced Mortgage Loan) and each REO Mortgage
Loan. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with November 2000) or any applicable portion thereof, the
Master Servicing Fee shall accrue at the related Master Servicing Fee Rate on
the same principal amount as interest accrues from time to time during such
calendar month (or portion thereof) on such Mortgage Loan or is deemed to accrue
from time to time during such calendar month (or portion thereof) on such REO
Mortgage Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Mortgage Loan or REO Mortgage Loan, as
the case may be. The Master Servicing Fee with respect to any Mortgage Loan or
REO Mortgage Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Master Servicing Fees earned with respect to any Mortgage Loan or REO
Mortgage Loan shall be payable monthly from payments of interest on such
Mortgage Loan or REO Revenues allocable as interest on such REO Mortgage Loan,
as the case may be. The Master Servicer shall be entitled to recover unpaid
Master Servicing Fees in respect of any Mortgage Loan or REO Mortgage Loan out
of the portion any related Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds allocable as interest on such Mortgage Loan or REO Mortgage
Loan, as the case may be.
The right to receive the Master Servicing Fee may not be transferred in
whole or in part except pursuant to the immediately preceding paragraph or in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
(b) The Master Servicer shall be entitled to receive the following items as
additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Performing Mortgage Loan;
(ii) any and all modification fees, extension fees and earnout
fees actually paid by a Borrower with respect to a Performing Mortgage
Loan;
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(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Mortgage
Loan;
(iv) any and all Net Assumption Application Fees and Net
Assumption Fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(v) any and all Prepayment Interest Excesses collected on the
Mortgage Loans; and
(vi) interest or other income earned on deposits in the
Investment Accounts maintained by the Master Servicer, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to any such Investment Account for each
Collection Period and, further, in the case of a Servicing Account or
Reserve Account, only to the extent such interest or other income is
not required to be paid to any Borrower under applicable law or under
the related Mortgage).
To the extent that any of the amounts described in the preceding paragraph
are collected by the Special Servicer, the Special Servicer shall promptly pay
such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive monthly the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As to each
Specially Serviced Mortgage Loan and REO Mortgage Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Mortgage Loan or is deemed to accrue from
time to time during such calendar month (or portion thereof) on such REO
Mortgage Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Specially Serviced Mortgage Loan or REO
Mortgage Loan, as the case may be. The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease to accrue as
of the date a Liquidation Event occurs in respect thereof or, in the case of a
Specially Serviced Mortgage Loan, as of the date it becomes a Corrected Mortgage
Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable out of, and shall be calculated by application of the Workout Fee Rate
to, each payment of interest (other than Post-ARD Additional Interest and
Default Interest) and principal received from the related Borrower on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with respect to any Corrected Mortgage Loan will cease to be payable if a
Servicing Transfer Event occurs with respect thereto or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee would become
payable if and when such Mortgage Loan again became a Corrected Mortgage Loan.
If the Special Servicer is terminated, including pursuant to Section 3.25, or
resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Mortgage Loans that
became Corrected Mortgage Loans during the period that it acted as Special
Servicer and that were still Corrected Mortgage Loans at the time of such
termination or resignation and (ii) any Specially
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Serviced Mortgage Loans for which the Special Servicer has resolved the
circumstances and/or conditions causing any such Mortgage Loan to be a Specially
Serviced Mortgage Loan, but which had not as of the time the Special Servicer
was terminated become a Corrected Mortgage Loan solely because the related
Borrower had not made three consecutive timely Monthly Payments and which
subsequently becomes a Corrected Mortgage Loan as a result of the related
Borrower making such three consecutive timely monthly payments (and the
successor Special Servicer shall not be entitled to any portion of such Workout
Fees), in each case until the Workout Fee for any such loan ceases to be payable
in accordance with the preceding sentence; provided that, in the case of any
Specially Serviced Mortgage Loan described in clause (ii) of this sentence, the
terminated Special Servicer shall immediately deliver the related Servicing File
to the Master Servicer, and the Master Servicer shall (without further
compensation) monitor that all conditions precedent to such Mortgage Loan's
becoming a Corrected Mortgage Loan are satisfied and, further, shall immediately
transfer such Servicing File to the new Special Servicer if and when it becomes
apparent to the Master Servicer that such conditions precedent will not be
satisfied.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff from the related Borrower or any Condemnation Proceeds
or Liquidation Proceeds (other than in connection with the purchase of any such
Specially Serviced Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or a Controlling Class Certificateholder pursuant to Section
3.18 or Section 9.01, or the repurchase or replacement thereof by Union Capital
pursuant to the Union Capital Agreement or by a Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase Agreement). As to each such Specially
Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable out
of, and shall be calculated by application of the Liquidation Fee Rate to, any
such full or discounted payoff, Condemnation Proceeds and/or Liquidation
Proceeds received or collected in respect thereof (other than any portion of
such payment or proceeds that represents Post-ARD Additional Interest, Default
Interest, a Prepayment Premium or a Yield Maintenance Charge). The Liquidation
Fee with respect to any such Specially Serviced Mortgage Loan will not be
payable if such Mortgage Loan becomes a Corrected Mortgage Loan. Notwithstanding
anything herein to the contrary, no Liquidation Fee will be payable in
connection with the receipt of, or out of, Liquidation Proceeds collected as a
result of the purchase or substitution of any Specially Serviced Mortgage Loan
or REO Property described in the parenthetical to the first sentence of this
paragraph.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement and except as contemplated
by Section 3.22(f).
(d) The Special Servicer shall be entitled to receive the following items
as additional special servicing compensation (the following items, collectively,
the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Mortgage Loan or an REO Mortgage Loan;
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(ii) any and all Net Assumption Fees, Net Assumption Application Fees,
modification fees, extension fees, earnout fees, charges for beneficiary
statements or demands that are actually received on or with respect to
Specially Serviced Mortgage Loans or REO Mortgage Loans; and
(iii) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the extent
of the Net Investment Earnings, if any, with respect to the REO Account for
each Collection Period).
To the extent that any of the amounts described in the preceding paragraph
are collected by the Master Servicer with respect to Specially Serviced Mortgage
Loans, the Master Servicer shall promptly pay such amounts to the Special
Servicer and shall not be required to deposit such amounts in the Collection
Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall each be required
(subject to Section 3.11(h) below) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any of Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Collection
Account, the Servicing Accounts, the Reserve Accounts or the REO Account, and
neither the Master Servicer nor the Special Servicer shall be entitled to
reimbursement for any such expense incurred by it except as expressly provided
in this Agreement. If the Master Servicer is required to make any Servicing
Advance hereunder at the discretion of the Special Servicer in accordance with
Section 3.19 or otherwise, the Special Servicer shall promptly provide the
Master Servicer with such documentation regarding the subject Servicing Advance
as the Master Servicer may reasonably request.
(f) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within ten days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure to the defaulting
party. If such Advance is not made by the Master Servicer or the Special
Servicer within three Business Days after such notice, then (subject to Section
3.11(h) below) the Trustee or a Fiscal Agent appointed thereby shall make such
Advance. If any Fiscal Agent makes any such Servicing Advance, the Trustee shall
be deemed not to be in default under this Agreement for failing to do so.
(g) The Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent shall each be entitled to receive interest at the Reimbursement Rate in
effect from time to time, accrued on the amount of each Servicing Advance made
thereby (with its own funds), for so long as such Servicing Advance is
outstanding. Such interest with respect to any Servicing Advances shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on or in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such Servicing Advance relates;
and (ii) then, after such Servicing Advance is reimbursed, but only if and to
the extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the Collection Account. The Master Servicer shall reimburse itself,
the Special Servicer, the Trustee or any Fiscal Agent, as appropriate, for any
Servicing Advance made by any such Person as soon as practicable after funds
available for such purpose are
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deposited in the Collection Account. The Master Servicer shall not be entitled
to Advance Interest to the extent a payment is received but is being held by the
Master Servicer in suspense.
(h) Notwithstanding anything to the contrary set forth herein, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make any Servicing Advance that it determines in its reasonable,
good faith judgment would constitute a Nonrecoverable Servicing Advance. The
determination by any Person with an obligation hereunder to make Servicing
Advances that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made by such Person in its reasonable, good faith judgment and
shall be evidenced by an Officer's Certificate delivered promptly to the
Depositor and the Trustee (unless it is the Person making such determination),
which shall provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination, accompanied by a copy of an
Appraisal of the related Mortgaged Property or REO Property performed within the
12 months preceding such determination, and further accompanied by any other
information, including engineers' reports, environmental surveys or similar
reports, that such Person may have obtained and that support such determination.
Notwithstanding the foregoing, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on any determination of nonrecoverability that may
have been made by the Master Servicer or the Special Servicer with respect to a
particular Servicing Advance, and the Master Servicer and the Special Servicer
shall each be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the other such party with respect
to a particular Servicing Advance. A copy of any such Officer's Certificate (and
accompanying information) of the Master Servicer shall also be delivered
promptly to the Special Servicer, a copy of any such Officer's Certificate (and
accompanying information) of the Special Servicer shall also be promptly
delivered to the Master Servicer, and a copy of any such Officer's Certificates
(and accompanying information) of the Trustee or the Fiscal Agent shall also be
promptly delivered to the Master Servicer and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the Master
Servicer may (and, at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved, shall) pay directly out
of the Collection Account any servicing expense that, if paid by the Master
Servicer or the Special Servicer, would constitute a Nonrecoverable Servicing
Advance; provided that the Master Servicer (or the Special Servicer, if a
Specially Serviced Mortgage Loan or an REO Property is involved) has determined
in accordance with the Servicing Standard that making such payment is in the
best interests of the Certificateholders (as a collective whole), as evidenced
by an Officer's Certificate delivered promptly to the Depositor and the Trustee,
which shall provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be delivered promptly to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a physical
inspection of a Mortgaged Property as soon as practicable (but in any event not
later than 60 days) after the related Mortgage
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Loan becomes a Specially Serviced Mortgage Loan (and, in cases where the related
Mortgage Loan has become a Specially Serviced Mortgage Loan, the Special
Servicer shall continue to perform or cause to be performed a physical
inspection of the subject Mortgaged Property at least once per calendar year
thereafter for so long as the related Mortgage Loan remains a Specially Serviced
Mortgage Loan or if such Mortgaged Property becomes an REO Property); provided
that the Special Servicer shall be entitled to reimbursement of the reasonable
and direct out-of-pocket expenses incurred by it in connection with each such
inspection as Servicing Advances. Beginning in 2001, the Master Servicer shall
at its expense perform or cause to be performed an inspection of each Mortgaged
Property at least once per calendar year (or, in the case of each Mortgage Loan
with an unpaid principal balance of under $2,000,000, once every two years), if
the Special Servicer has not already done so during that period pursuant to the
preceding sentence. The Master Servicer and the Special Servicer shall each
prepare (and, promptly following preparation, deliver to each other and to the
Controlling Class Representative) a written report of each such inspection
performed by it or on its behalf that sets forth in detail the condition of the
Mortgaged Property and that specifies the occurrence or existence of: (i) any
sale, transfer or abandonment of the Mortgaged Property of which the Master
Servicer or Special Servicer, as applicable, is aware, (ii) any change in the
condition or occupancy of the Mortgaged Property that the Master Servicer or the
Special Servicer, as applicable, in accordance with the Servicing Standard, is
aware of and considers material, or (iii) any waste committed on the Mortgaged
Property that the Master Servicer or the Special Servicer, as the case may be,
in accordance with the Servicing Standard, is aware of and considers material.
Upon request of the Trustee, the Master Servicer and the Special Servicer shall
each deliver to the Trustee a copy (or image in suitable electronic media) of
each such written report prepared by it, in each case within 30 days following
the request (or, if later, within 30 days following the later of completion of
the related inspection if the inspection is performed by the Master Servicer or
the Special Servicer, as applicable, or receipt of the related inspection report
if the inspection is performed by a third-party). Upon request, the Trustee
shall request from the Master Servicer or the Special Servicer, as applicable,
and, to the extent such items have been delivered to the Trustee by the Master
Servicer or the Special Servicer, as applicable, deliver to each of the
Depositor, the related Mortgage Loan Seller, the Controlling Class
Representative, any Certificateholder or, if the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in Certificates held thereby,
any Certificate Owner, a copy (or image in suitable electronic media) of each
such written report prepared by the Master Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended December 31,
2000, the Special Servicer, in the case of any Specially Serviced Mortgage Loan,
and the Master Servicer, in the case of each Performing Mortgage Loan, shall
make reasonable efforts to collect promptly from each related Borrower quarterly
and annual operating statements, budgets and rent rolls of the related Mortgaged
Property, and quarterly and annual financial statements of such Borrower,
whether or not delivery of such items is required pursuant to the terms of the
related Mortgage. In addition, the Special Servicer shall cause quarterly and
annual operating statements, budgets and rent rolls to be regularly prepared in
respect of each REO Property and shall collect all such items promptly following
their preparation. The Special Servicer shall deliver copies (or images in
suitable electronic media) of all of the foregoing items so collected or
obtained by it to the Master Servicer within 30 days of its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Borrowers, as to Performing Mortgage Loans, and within 30 days after receipt by
the Master Servicer from the Special Servicer, as to Specially Serviced Mortgage
Loans and REO Properties, of any annual operating statements or rent rolls with
respect to any Mortgaged Property or REO Property, the Master Servicer shall,
based upon such operating statements or rent rolls, prepare (or, if previously
prepared, update) the
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written analysis of operations (the "Operating Statement Analysis Report"), and
the Master Servicer shall remit a copy of each Operating Statement Analysis
Report prepared or updated by it (promptly following initial preparation and
each update thereof), together with, if so requested, the underlying operating
statements and rent rolls, to the Trustee and the Special Servicer in a format
reasonably acceptable to the Trustee and the Special Servicer. All Operating
Statement Analysis Reports shall be maintained by the Master Servicer with
respect to each Mortgaged Property and REO Property. The Trustee shall, upon
request, request from the Master Servicer (if necessary) and, to the extent such
items have been delivered to the Trustee by the Master Servicer, deliver to the
Controlling Class Representative, any Certificateholder or, if the Trustee has
in accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such Operating
Statement Analysis (or update thereof) and, if requested, the related operating
statement or rent rolls. The Master Servicer shall maintain an Operating
Statement Analysis Report with respect to each Mortgaged Property and REO
Property. Each such Operating Statement Analysis Report shall be substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Operating Statement Analysis
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer.
Within 60 days (or, in the case of items received from the Special Servicer
with respect to Specially Serviced Mortgage Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property or REO Property, the Master
Servicer shall prepare or update and forward to the Trustee, the Special
Servicer and the Controlling Class Representative (in an electronic format
reasonably acceptable to the Trustee and the Special Servicer) an NOI Adjustment
Worksheet for such Mortgaged Property or REO Property, together with, if so
requested, the related quarterly or annual operating statements.
If, with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan), the Special Servicer has any questions for the related Borrower
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or 3.12(b), the Master Servicer shall, in this regard and without
otherwise changing or modifying its duties hereunder, reasonably cooperate with
the Special Servicer in assisting the Special Servicer to contact and solicit
information from such Borrower.
(c) Not later than 2:00 p.m. (New York City time) on each Determination
Date, the Special Servicer shall prepare and deliver or cause to be delivered to
the Master Servicer and the Controlling Class Representative the following
reports (or data files relating to reports of the Master Servicer) with respect
to the Specially Serviced Mortgage Loans and any REO Properties, providing the
required information as of such Determination Date: (i) a Property File; and
(ii) a Loan Periodic Update File (which, in each case, if applicable, will
identify each Mortgage Loan by loan number and property name). At or before 2:00
p.m. (New York City time) on the first Business Day following each Determination
Date, the Special Servicer shall prepare and deliver or cause to be delivered to
the Master Servicer the following reports with respect to the Specially Serviced
Mortgage Loans and any REO Properties, providing the information required of the
Special Servicer in an electronic format reasonably acceptable to the Master
Servicer as of such Determination Date: (i) a Delinquent Loan Status Report;
(ii) a Comparative Financial Status Report; (iii) an Historical Liquidation
Report; (iv) an Historical Loan Modification Report; and (v) an REO Status
Report. In addition, the Special Servicer shall from time to
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time provide the Master Servicer with such information in the Special Servicer's
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
may be requested by the Master Servicer and reasonably necessary for the Master
Servicer to prepare each report and any supplemental information required to be
provided by the Master Servicer to the Trustee.
(d) Not later than 3:00 p.m. (New York City time) on the Business Day
immediately preceding each Distribution Date, the Master Servicer shall prepare
(if and to the extent necessary) and deliver or cause to be delivered to the
Trustee, in a computer-readable medium downloadable by the Trustee (or, at the
Trustee's written request, in a form reasonably acceptable to the recipient,
including on a loan-by-loan basis), each of the files and reports comprising the
CMSA Investor Reporting Package (excluding any Operating Statement Analysis
Report, any NOI Adjustment Worksheet, the Bond Level File, the Collateral
Summary File, the Loan Setup File and the Loan Periodic Update File), in each
case providing the most recent information as of the related Determination Date
(and which, in each case, if applicable, will identify each Mortgage Loan by
loan number and property name); provided that the Master Servicer shall not be
required to prepare and deliver any of the files and reports comprising the CMSA
Investor Reporting Package (other than the Loan Periodic Update File) before the
second Business Day following the third Determination Date following the Closing
Date.
The Master Servicer may, but is not required to, make any of the reports or
files comprising the CMSA Investor Reporting Package (other than the Bond Level
File and the Collateral Summary File, which are prepared by the Trustee)
available each month on the Master Servicer's Internet Website only with the use
of a password, in which case the Master Servicer shall provide such password to
(i) the other parties to this Agreement, who by their acceptance of such
password shall be deemed to have agreed not to disclose such password to any
other Person, (ii) the Rating Agencies and the Controlling Class Representative,
(iii) each Certificateholder who requests such password and (iv) each
Certificate Owner who requests such password, provided that such Certificate
Owner has delivered a certification substantially in the form of Exhibit L-1 to
the Trustee (with a copy to the Master Servicer). In connection with providing
access to the Master Servicer's Internet Website, the Master Servicer may
require registration and the acceptance of a disclaimer and otherwise (subject
to the preceding sentence) adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer deems necessary or appropriate,
conditioning access on execution of an agreement governing the availability, use
and disclosure of such information, and which may provide indemnification to the
Master Servicer for any liability or damage that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the reports
set forth in Section 3.12(b) and Section 3.12(c), and the Master Servicer shall
deliver to the Trustee the reports set forth in Section 3.12(d), in an
electronic format reasonably acceptable to the Special Servicer, the Master
Servicer and the Trustee. The Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b) and Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received the requisite information or reports from the
Special Servicer, and the Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(d) caused by the
Special Servicer's failure to
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timely provide any information or report required under Section 3.12(b) or
Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Master Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Master Servicer or the Special
Servicer as the case may be, would violate any applicable law or any provision
of a Mortgage Loan document prohibiting disclosure of information with respect
to the Mortgage Loans or Mortgaged Properties or would constitute a waiver of
the attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standard. The Master Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(g) The Depositor shall provide to the Master Servicer and the Trustee the
initial data (as of the respective Due Dates for the Original Mortgage Loans in
November 2000 or the most recent earlier date for which such data is available)
contemplated by the Loan Setup File, the Loan Periodic Update File, the
Operating Statement Analysis Report and the Property File.
(h) Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the operating systems of the initial Master Servicer and the
initial Special Sub-Servicer are not currently set up so as to enable it to
prepare and deliver the Property File and the Financial File. The initial Master
Servicer and the initial Special Sub-Servicer shall each use commercially
reasonable efforts to modify its operating systems so that it can provide such
reports as soon as reasonably practical, at which time (and, in any event, no
later than August 1, 2001) it shall be obligated to comply with the requirements
of this Agreement regarding the delivery of those reports. The initial Special
Servicer shall not be obligated to deliver those reports until the initial
Special Sub-Servicer's operating systems have been so modified.
(i) Notwithstanding anything to the contrary contained herein, including
Section 3.12(j), but subject to Section 3.12(h), the Master Servicer shall
deliver electronically the reports and files (except for the Bond File and the
Collateral Summary File) listed on Exhibit P in the format and with the
frequency set forth in Exhibit P to the Controlling Class Representative. The
Trustee will make available to the Controlling Class Representative the Bond
File and the Collateral Summary File on the Trustee's website.
(j) If the Master Servicer or the Special Servicer is required to deliver
any statement, report or information under any provision of this Agreement, the
Master Servicer or the Special Servicer, as the case may be, may satisfy such
obligation by (x) physically delivering a paper copy of such statement, report
or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's Internet website or the Trustee's
Internet website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
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SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, the Depositor, the Underwriters, the Controlling Class Representative
and each other, on or before April 30 of each year, beginning in 2002, an
Officer's Certificate (the "Annual Performance Certification") stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification, or
challenging the status, of any REMIC Pool as a REMIC or any Grantor Trust Pool
as a Grantor Trust from the IRS or any other governmental agency or body (or, if
it has received any such notice, specifying the details thereof); provided that
the Master Servicer and the Special Servicer shall each be required to deliver
its Annual Performance Certification by March 15 in 2002 or any given year
thereafter if it has received written confirmation from the Trustee or the
Depositor by January 31 of that year that a Report on Form 10-K is required to
be filed in respect of the Trust for the preceding calendar year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2002, each of the Master
Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters, the Controlling Class
Representative and each other, to the effect that such firm has examined the
servicing operations of the Master Servicer or the Special Servicer, as the case
may be, for the previous calendar year and that, on the basis of such
examination, conducted substantially in compliance with USAP, such firm confirms
that the Master Servicer or the Special Servicer, as the case may be, has
complied during such previous calendar year with the minimum servicing standards
(to the extent applicable to commercial and multifamily mortgage loans)
identified in USAP in all material respects, except for such significant
exceptions or errors in records that, in the opinion of such firm, USAP requires
it to report; provided that the Master Servicer and the Special Servicer shall
each be required to cause the delivery of its Annual Accountants' Report by
March 15 in 2002 or any given year thereafter if it has received written
confirmation from the Trustee or the Depositor by January 31 of that year that a
Report on Form 10-K is required to be filed in respect of the Trust for the
preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year (or,
in the case of the Special Sub-Servicer, 3 months) of such report) with respect
to those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably cooperate
with the Depositor in providing any other form of accountants' reports as may be
required by the Commission in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act, and the reasonable additional costs
of providing such other forms of accountants' reports shall be borne by the
Depositor.
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SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, any Fiscal Agent, the Depositor, each Rating Agency, the
Controlling Class Representative and to the OTS, the FDIC and any other banking
or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any records regarding the
Mortgage Loans and the servicing thereof within its control, except to the
extent it is prohibited from doing so by applicable law, the terms of the
Mortgage Loan documents or contract entered into prior to the Closing Date or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it. The Master Servicer and the Special Servicer
shall each be entitled to affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto). In connection with providing
access to such records to the Controlling Class Representative, the Master
Servicer and the Special Servicer may each require registration (to the extent
access is provided via the Master Servicer's or Special Servicer's Internet
Website, as applicable) and the acceptance of a reasonable and customary
disclaimer and otherwise adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer or the Special Servicer, as
applicable, deems necessary or appropriate, conditioning access on the execution
and delivery of an agreement governing the availability, use and disclosure of
such information.
(b) Neither the Master Servicer nor the Special Servicer shall be liable
for providing or disseminating information in accordance with the terms of this
Agreement.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust, shall sell any
REO Property by the end of the third calendar year following the year in which
the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than 60 days prior to the expiration of such liquidation period, and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the Trustee,
to the effect that the holding by the Trust of such REO Property subsequent to
the end of the third calendar year following the year in which such acquisition
occurred will not result in an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to any Grantor Trust Pool.
Regardless of whether the Special Servicer applies for or is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel referred to in clause (ii) of such sentence, the
Special Servicer shall act in accordance with the Servicing Standard to
liquidate such REO Property on a timely basis. If the Special Servicer is
granted such REO Extension or obtains such Opinion of Counsel, the Special
Servicer shall (i) promptly forward a copy of such REO Extension or Opinion of
Counsel to the Trustee, and (ii) sell such REO Property within such extended
period as is permitted by such REO Extension or contemplated by such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its applying for and being granted the REO Extension
contemplated by clause (i) of the third preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the third preceding sentence,
shall be covered by, and be reimbursable as, a Servicing Advance.
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(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. Each account that constitutes the REO Account shall be
an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, within one Business Day following receipt, all
REO Revenues, Insurance Proceeds and Liquidation Proceeds received in respect of
an REO Property. Funds in the REO Account may be invested in Permitted
Investments in accordance with Section 3.06. The Special Servicer shall be
entitled to make withdrawals from the REO Account to pay itself, as Additional
Special Servicing Compensation, interest and investment income earned in respect
of amounts held in the REO Account as provided in Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account or deliver to the
Master Servicer (which shall deposit such amounts into the Collection Account)
the aggregate of all amounts received in respect of each REO Property during
such Collection Period, net of any withdrawals made out of such amounts pursuant
to the preceding sentence; provided that the Special Servicer may retain in the
REO Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following 12-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or 3.16(c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax referred to
herein as an "REO Tax"), such Mortgaged Property may be Directly Operated
by the Special Servicer as REO Property;
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(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the judgment of the Special Servicer, exercised in
accordance with the Servicing Standard, it is commercially reasonable) so
lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, the Special Servicer shall deliver to the
Trustee, in writing, a proposed plan (the "Proposed Plan") to manage such
property as REO Property. Such plan shall include potential sources of
income and good faith estimates of the amount of income from each such
source. Within a reasonable period of time after receipt of such plan, the
Trustee shall consult with the Special Servicer and shall advise the
Special Servicer of the Trust's federal income tax reporting position with
respect to the various sources of income that the Trust would derive under
the Proposed Plan. In addition, the Trustee shall (to the maximum extent
reasonably possible) advise the Special Servicer of the estimated amount of
taxes that the Trust would be required to pay with respect to each such
source of income. After receiving the information described in the two
preceding sentences from the Trustee, the Special Servicer shall either (A)
implement the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage and operate such property in a
manner that would not result in the imposition of an REO Tax on the income
derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be in accordance with the Servicing Standard. Neither
the Special Servicer nor the REMIC Administrator shall be liable to the
Certificateholders, the Trust, the other parties hereto or each other for errors
in judgment made in good faith in the exercise of their discretion while
performing their respective responsibilities under this Section 3.17(a). Nothing
in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage
Loan or REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), result in the receipt by any REMIC Pool of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool. Except as
contemplated by Section 3.17(a), the Special Servicer shall not enter into any
lease, contract or other agreement that causes the Trust to receive, and (unless
required to do so under any lease, contract or agreement to which the Special
Servicer or the Trust may become a party or successor to a party due to a
foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Mortgage Loan) shall not cause
or allow the Trust to receive, any "net income from foreclosure property" that
is subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority
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to do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account with respect to any REO
Property are insufficient for the purposes contemplated by the preceding
sentence with respect to such REO Property, the Master Servicer shall, at the
direction of the Special Servicer, advance such amounts as are necessary for
such purposes unless the Master Servicer or the Special Servicer determines, in
its reasonable, good faith judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that the Master Servicer
may in its sole discretion make any such Servicing Advance without regard to
recoverability if it is a necessary fee or expense incurred in connection with
the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and management
of such REO Property, including those listed in Section 3.17(b) above, and
(B) remit all related revenues collected (net of its fees and such costs
and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
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The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or purchase
of, a Mortgage Loan or REO Property only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable, good faith
judgment, that any Defaulted Mortgage Loan has or will become subject to
foreclosure proceedings and that the sale of such Mortgage Loan under the
circumstances provided in this Section 3.18(b) or Section 3.18(c) is in
accordance with the Servicing Standard, then the Special Servicer shall promptly
so notify in writing the Trustee and the Master Servicer, and the Trustee shall,
within five days after receipt of such notice, so notify all the Controlling
Class Certificateholders. Any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders may, at its or their option,
within 15 days after receipt of such notice, purchase any Defaulted Mortgage
Loan out of the Trust Fund at a cash price equal to the applicable Purchase
Price; provided that, if more than one Controlling Class Certificateholder or
group of Controlling Class Certificateholders desire to purchase such Defaulted
Mortgage Loan, preference shall be given to the Controlling Class
Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class. The Purchase Price for any
Defaulted Mortgage Loan purchased under this Section 3.18(b) shall be deposited
into the Collection Account, and the Trustee, upon receipt of an Officer's
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Certificateholder(s)
effecting such purchase (or to its or their designee) the related Mortgage File,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in such Certificateholder(s) ownership of such Mortgage Loan.
In connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Certificateholder(s) effecting such purchase (or
to its or their designee).
(c) If none of the Controlling Class Certificateholders has purchased any
Defaulted Mortgage Loan described in the first sentence of Section 3.18(b)
within 15 days of such Holders' having received notice in respect thereof
pursuant to Section 3.18(b) above, then the Trustee shall within five days of
the end of such 15-day period send notice to the Master Servicer and the Special
Servicer that such Mortgage Loan was not purchased by such Certificateholder(s),
and either the Master Servicer or the Special Servicer (in that order of
priority) may, at its option, within 15 days after receipt of such notice,
purchase (or designate an Affiliate thereof to purchase) such Mortgage Loan out
of the Trust Fund at a cash price equal to the Purchase Price. The Purchase
Price for any such Mortgage Loan purchased under this Section 3.18(c) shall be
deposited into the Collection Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Master Servicer or
the Special Servicer (or the designated Affiliate thereof), as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are
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reasonably necessary to vest in the Master Servicer or the Special Servicer (or
the designated Affiliate thereof), as applicable, the ownership of such Mortgage
Loan. In connection with any such purchase by the Master Servicer (or any
designated Affiliate thereof), the Special Servicer shall deliver the related
Servicing File to the Master Servicer (or any designated Affiliate thereof). For
purposes of the other sections of this Agreement, any purchase of a Defaulted
Mortgage Loan by a designated Affiliate of the Master Servicer or Special
Servicer pursuant to this Section 3.18(c) shall be deemed a purchase of such
Defaulted Mortgage Loan by the Master Servicer or the Special Servicer, as
applicable.
(d) Subject to Section 3.24, the Special Servicer may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, in its good
faith and reasonable judgment, consistent with the Servicing Standard, that such
a sale would be in the best economic interests of the Certificateholders (as a
collective whole). Such offer shall be made in a commercially reasonable manner
(which, for purposes hereof, includes an offer to sell without representation or
warranty other than customary warranties of title and condition, if liability
for breach thereof is limited to recourse against the Trust) for a period of not
less than ten days. Subject to Section 3.18(h) and Section 3.24, the Special
Servicer shall accept the highest cash bid received from any Person that
constitutes a fair price (determined pursuant to Section 3.18(e) below) for such
Mortgage Loan. In the absence of any cash bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use commercially reasonable efforts to solicit
cash bids for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.16(a).
Subject to Section 3.18(h) and Section 3.24, the Special Servicer shall accept
the first (and, if multiple cash bids are received by a specified bid date, the
highest) cash bid received from any Person that constitutes a fair price
(determined pursuant to Section 3.18(e) below) for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price (determined pursuant to Section 3.18(e) below) for any REO Property within
the time constraints imposed by Section 3.16(a), the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer and the
Controlling Class Representative not less than five Business Days' prior written
notice of its intention to sell any Defaulted Mortgage Loan or REO Property
pursuant to this Section 3.18(d). No Interested Person shall be obligated to
submit a bid to purchase any such Mortgage Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from the Special Servicer or an Affiliate thereof, by the Trustee. In
determining whether any bid received from the Special Servicer or an Affiliate
thereof represents a fair price for any such Mortgage Loan or REO Property, the
Trustee shall be supplied with and shall be entitled to rely on the most recent
Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period (or, in the absence of any such
Appraisal or if there has been a material change at the subject property since
any such Appraisal, on a new Appraisal to be obtained by the Special Servicer
(the cost of which shall be covered by, and be reimbursable as, a
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Servicing Advance)). The appraiser conducting any such new Appraisal shall be a
Qualified Appraiser that is (i) selected by the Special Servicer if neither the
Special Servicer nor any Affiliate thereof is bidding with respect to a
Defaulted Mortgage Loan or REO Property and (ii) selected by the Trustee if
either the Special Servicer or any Affiliate thereof is so bidding. Where any
Interested Person is among those bidding with respect to a Defaulted Mortgage
Loan or REO Property, the Special Servicer shall require that all bids be
submitted to it (or, if the Special Servicer or an Affiliate thereof is bidding,
shall be submitted by it to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any cash bid from a Person other than the Special Servicer
or an Affiliate thereof constitutes a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall take into account the results of any
Appraisal or updated Appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the preceding 12-month period, and any
Qualified Appraiser shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any such Mortgage Loan or REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Defaulted Mortgage Loan or REO Property unless
such bid is the highest cash bid received and at least two independent cash bids
(not including the bid of the Special Servicer or any Affiliate) have been
received. In the event the cash bid of the Special Servicer or any Affiliate
thereof is the only cash bid received or is the higher of only two cash bids
received, then additional cash bids shall be solicited. If an additional cash
bid or cash bids, as the case may be, are received and the original cash bid of
the Special Servicer or any Affiliate thereof is the highest of all cash bids
received or if no additional cash bids are received, then the cash bid of the
Special Servicer or such Affiliate shall be accepted, provided that the Trustee
has otherwise determined, as provided above in this Section 3.18(e), that such
cash bid constitutes a fair price for any Defaulted Mortgage Loan or REO
Property. Any cash bid by the Special Servicer shall be unconditional; and, if
accepted, the Defaulted Mortgage Loan or REO Property shall be transferred to
the Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating with independent third parties
and taking any other action necessary or appropriate in connection with the sale
of any Defaulted Mortgage Loan or REO Property, and the collection of all
amounts payable in connection therewith. In connection therewith, the Special
Servicer may charge prospective bidders, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to such sales or evaluating cash bids without obligation
to deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse (except
for warranties of title and condition contemplated by Section 3.18(d)) to the
Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only.
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(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
but subject to Section 3.24, the Special Servicer shall not be obligated to
accept the highest cash bid if the Special Servicer determines, in its good
faith and reasonable judgment, consistent with the Servicing Standard, that
rejection of such bid would be in the best interests of the Certificateholders
(as a collective whole), and the Special Servicer may accept a lower cash bid
(from any Person other than itself or an Affiliate) if it determines, in its
good faith and reasonable judgment, consistent with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(as a collective whole) (for example, if the prospective buyer making the lower
bid is more likely to perform its obligations or the terms (other than price)
offered by the prospective buyer making the lower bid are more favorable).
(i) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
to the extent provided under the terms of the intercreditor agreement relating
to the Mortgage Loan secured by a Mortgage on the Mortgaged Property identified
on the Mortgage Loan Schedule as Pembroke Office Park, and provided that (X) a
material default has occurred under such Mortgage Loan or a payment default is
reasonably foreseeable and including all outstanding principal, unpaid interest
and unpaid Default Charges, (Y) the purchase price for such Mortgage Loan
includes the payment of all amounts due thereon, the Master Servicer or Special
Servicer shall be authorized to sell such Mortgage Loan to the subordinate
lender in accordance with the terms of this Agreement and the related
intercreditor agreement.
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account by 2:00 p.m. (New York City time) on each Master Servicer
Remittance Date, without any right of reimbursement therefor, a cash payment (a
"Compensating Interest Payment") in an amount equal to the lesser of (i) the
aggregate amount of Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Pool during the most
recently ended Collection Period, and (ii) the aggregate of (A) that portion of
its Master Servicing Fees for the related Collection Period that is, in the case
of each and every Mortgage Loan and REO Mortgage Loan for which such Master
Servicing Fees are being paid in such Collection Period, calculated at 0.02% per
annum, and (B) all Prepayment Interest Excesses and, to the extent earned on
Principal Prepayments, Net Investment Earnings received by the Master Servicer
during the most recently ended Collection Period; provided, however, that if a
Prepayment Interest Shortfall occurs as a result of the Master Servicer's
allowing the related Borrower to deviate from the terms of the related Mortgage
Loan documents regarding Principal Prepayments (other than (X) subsequent to a
default under the related Mortgage Loan documents, (Y) pursuant to applicable
law or a court order, or (Z) at the request or with the consent of the
Controlling Class Representative), then, for purposes of calculating the
Compensating Interest Payment for the subject Collection Period, the amount in
clause (ii) above shall be the aggregate of (A) all Master Servicing Fees for
such Collection Period and (B) all Prepayment Interest Excesses and, to the
extent earned on Principal Prepayments, Net Investment Earnings received by the
Master Servicer during such Collection Period; and provided, further, that the
rights of the Certificateholders to offset of the aggregate Prepayment Interest
Shortfalls shall not be cumulative.
(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated, out
of the Master Servicer's own funds, to reimburse the Special Servicer for any
Servicing Advances (other than Nonrecoverable Servicing Advances) made by but
not previously reimbursed to the Special Servicer, together with interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of
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reimbursement. Such reimbursement and any accompanying payment of interest shall
be made within ten Business Days of the written request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of
any Servicing Advance and payment to the Special Servicer of interest thereon,
all in accordance with this Section 3.19(b), the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer actually made such Servicing Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest thereon in accordance with Sections
3.05(a) and 3.11(g), at the same time, in the same manner and to the same extent
as the Master Servicer would otherwise have been entitled if it had actually
made such Servicing Advance at the time the Special Servicer did.
Notwithstanding anything to the contrary contained in any other Section of
this Agreement, if the Special Servicer is required under this Agreement (but
subject to the following paragraph), to make any Servicing Advance but does not
desire to do so, the Special Servicer may, in its sole discretion, request that
the Master Servicer make such Servicing Advance. Any such request shall be made,
in writing, in a timely manner that does not adversely affect the interests of
any Certificateholder (and, in any event, to the extent reasonably practicable,
at least five Business Days in advance of the date on which the subject
Servicing Advance is to be made) and shall be accompanied by such information
and documentation regarding the subject Servicing Advance as the Master Servicer
may reasonably request; provided, however, that the Special Servicer shall not
be entitled to make such a request (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by the Special Servicer to make, within five
Business Days of the Master Servicer's receipt of such request. If the request
is timely and properly made, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it so requests the Master
Servicer to make (regardless of whether or not the Master Servicer shall make
such Servicing Advance). The Master Servicer shall be entitled to reimbursement
for any Servicing Advance made by it at the direction of the Special Servicer,
together with interest thereon in accordance with Sections 3.05(a) and 3.11(g),
at the same time, in the same manner and to the same extent as the Master
Servicer is entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), the
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if the
Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event with
respect to any Mortgage Loan, the Special Servicer shall obtain (or, if such
Mortgage Loan has a Stated Principal Balance of $1,000,000 or less, at its
discretion, unless the Controlling Class Representative objects, conduct) an
Appraisal of the related Mortgaged Property, unless an Appraisal thereof had
previously been obtained (or, if applicable, conducted) within the preceding
12-month period and there has been no subsequent material change in the
circumstances surrounding the related Mortgaged Property that, in the judgment
of the Special Servicer, would materially affect the value of the property, and
shall deliver a
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copy of such Appraisal to the Trustee, the Master Servicer and the Controlling
Class Representative. If such Appraisal is obtained from a Qualified Appraiser,
the cost thereof shall be covered by, and be reimbursable as, a Servicing
Advance. Promptly following the receipt of, and based upon, such Appraisal, the
Special Servicer shall determine and report to the Trustee, the Master Servicer
and the Controlling Class Representative the then applicable Appraisal Reduction
Amount, if any, with respect to the subject Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a Required
Appraisal Loan, the Special Servicer shall, within 30 days of each anniversary
of such loan's having become a Required Appraisal Loan, obtain (or, if such
Required Appraisal Loan has a Stated Principal Balance of $1,000,000 or less, at
its discretion, unless the Controlling Class Representative objects, conduct) an
update of the prior Appraisal. If such update is obtained from a Qualified
Appraiser, the cost thereof shall be covered by, and be reimbursable as, a
Servicing Advance. Promptly following the receipt of, and based upon, such
update, the Special Servicer shall redetermine and report to the Trustee the
then applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan.
The Controlling Class Representative shall have the right at any time
within six months of the date of the receipt of any Appraisal to require that
the Special Servicer obtain a new Appraisal of such Mortgaged Property in
accordance with MAI standards, at the expense of the Controlling Class
Certificateholders, and upon receipt of such Appraisal the Special Servicer
shall redetermine the Appraisal Reduction Amount.
(d) The Master Servicer shall pay, without any right of reimbursement
therefor, the post-Closing Date fees of the Rating Agencies for ongoing
surveillance of the Rated Certificates; provided that the Master Servicer shall
not be required to pay without reimbursement the fees charged by any Rating
Agency for a confirmation as to the lack of an Adverse Rating Event with respect
to any Class of Rated Certificates in connection with any other particular
matter, unless the Master Servicer has failed to use efforts consistent with the
Servicing Standard to collect such fees from the Borrower, which shall include,
if it has the right to do so under the applicable Mortgage Loan, conditioning
its consent or approval on such payment by the Borrower.
(e) In connection with each prepayment of principal received hereunder, the
Master Servicer shall calculate any applicable Prepayment Premium or Yield
Maintenance Charge, as the case may be, payable under the terms of the related
Mortgage Note. Promptly following its determination thereof, the Master Servicer
shall disclose to the Trustee and, upon request, any Certificateholder its
calculation of any such Prepayment Premium or Yield Maintenance Charge,
including, in the case of a Yield Maintenance Charge, the U.S. Treasury rate
and, if different, the discount rate used to calculate such Yield Maintenance
Charge.
(f) With respect to each Mortgage Loan that provides for defeasance, the
Master Servicer shall, to the extent permitted by the terms of such Mortgage
Loan, require the related Borrower (i) to provide replacement collateral
consisting of U.S. government securities within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Loan (or defeased portion thereof) when
due (and assuming, in the case of an ARD Loan, to the extent consistent with the
related loan documents, that such Mortgage Loan matures on its Anticipated
Repayment Date), (ii) to deliver a certificate from an independent certified
public accounting firm certifying that the replacement collateral is sufficient
to make such payments, (iii) at the option of the Master Servicer, to designate
a single purpose entity (which may be a subsidiary of the
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Master Servicer established for the purpose of assuming all defeased Mortgage
Loans) to assume the Mortgage Loan (or defeased portion thereof) and own the
defeasance collateral, (iv) to implement such defeasance only after the second
anniversary of the Closing Date, (v) to provide an Opinion of Counsel that the
Trustee has a perfected, first priority security interest in the new collateral,
and (vi) in the case of a partial defeasance of the Mortgage Loan, to defease a
principal amount equal to at least 125% of the allocated loan amount for the
Mortgaged Property or Properties to be released. If the subject Mortgage Loan
has an outstanding principal balance less than the lesser of $20,000,000 and 2%
of the then aggregate Stated Principal Balance of the Mortgage Pool, and if
either the terms of the Mortgage Loan permit the Master Servicer to impose the
foregoing requirements or the Master Servicer satisfies such requirements on its
own, then confirmation that such defeasance will not result in an Adverse Rating
Event is not required. In such case, the Master Servicer shall provide the
Rating Agencies and the Controlling Class Representative with notice that the
foregoing requirements have been met. However, if the subject Mortgage Loan has
an outstanding principal balance greater than or equal to the lesser of
$20,000,000 and 2% of the aggregate Stated Principal Balance of the Mortgage
Pool, or if the terms of the Mortgage Loan do not permit the Master Servicer to
impose such requirements and the Master Servicer does not satisfy such
requirements on its own, then the Master Servicer shall so notify the Rating
Agencies and the Controlling Class Representative and, if the related loan
documents so permit, obtain a confirmation that such defeasance will not result
in an Adverse Rating Event. Subject to the related Mortgage Loan documents and
applicable law, the Master Servicer shall not execute a defeasance unless (i)
the Mortgage Loan requires the Borrower to pay all Rating Agency fees associated
with defeasance (if Rating Agency approval is a specific condition precedent
thereto) and all expenses associated with defeasance or other arrangements for
payment of such costs are made at no expense to the Trust Fund or the Master
Servicer (provided, however, that in no event shall such proposed "other
arrangements" result in any liability to the Trust Fund including any
indemnification of the Master Servicer or the Special Servicer which may result
in legal expenses to the Trust Fund), and (ii) the Borrower is required to
provide all Opinions of Counsel, including Opinions of Counsel that the
defeasance will not cause an Adverse REMIC Event or an Adverse Grantor Trust
Event and that the Mortgage Loan documents are fully enforceable in accordance
with their terms (subject to bankruptcy, insolvency and similar standard
exceptions), and any applicable rating confirmations.
(g) The Master Servicer shall, as to each Mortgage Loan which is secured by
the interest of the related Borrower under a Ground Lease, promptly (and in any
event within 45 days) after the Closing Date notify the related ground lessor of
the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(h) If a Mortgage Loan provides or allows that the related Borrower's
failure to make any Monthly Payment due thereunder on the applicable Due Date
will not result in an event of default for which the Mortgage Loan may be
accelerated and/or the accrual of Default Charges unless and until the Master
Servicer notifies such Borrower of the failure or the elapse of a specified
number of days following the Master Servicer's delivery of such notice, then the
Master Servicer shall promptly (and in any event within two Business Days
following the applicable Due Date) notify the related Borrower of such a
failure.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (solely as to Specially Serviced Mortgage Loans)
and the Master Servicer (solely as to Performing Mortgage Loans) each may
(consistent with the Servicing
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Standard) agree to any modification, waiver or amendment of any term of, extend
the maturity of, defer or forgive interest (including Default Interest and
Post-ARD Additional Interest) on and principal of, defer or forgive late payment
charges, Prepayment Premiums and Yield Maintenance Charges on, permit the
release, addition or substitution of collateral securing, and/or permit the
release, addition or substitution of the Borrower on or any guarantor of, any
Mortgage Loan it is required to service and administer hereunder, subject,
however, to Sections 3.08 and 3.24 and, further to each of the following
limitations, conditions and restrictions:
(i) other than as provided in Sections 3.02, 3.08 and 3.20(f), neither
the Master Servicer nor the Special Servicer shall agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan
that would affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the reasonable, good
faith judgment of the Master Servicer or the Special Servicer, as
applicable, would materially impair the security for such Mortgage Loan or
reduce the likelihood of timely payment of amounts due thereon, unless a
material default on such Mortgage Loan has occurred or, in the reasonable,
good faith judgment of the Master Servicer or the Special Servicer, as
applicable, a default in respect of payment on such Mortgage Loan is
reasonably foreseeable, and such modification, waiver, amendment or other
action is reasonably likely to produce a greater recovery to
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be done at the related Net Mortgage Rate), than
would liquidation;
(ii) neither the Master Servicer nor the Special Servicer shall extend
the date on which any Balloon Payment is scheduled to be due on any
Mortgage Loan to a date beyond the earliest of (A) the fifth anniversary of
such Mortgage Loan's Stated Maturity Date, (B) two years prior to the Rated
Final Distribution Date, (C) if such Mortgage Loan is secured by a Mortgage
solely or primarily on the related Borrower's leasehold interest in the
related Mortgaged Property, 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the remaining term of the
Ground Lease, 10 years) prior to the end of the then current term of the
related Ground Lease (plus any unilateral options to extend), and (D) if
such Mortgage Loan is covered by an environmental insurance policy, two
years prior to the expiration of the term of such policy unless the Master
Servicer or the Special Servicer, as applicable, shall have first
determined in its reasonable, good faith judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that the
Master Servicer or the Special Servicer, as applicable, deems necessary and
prudent) conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments, and at the expense of the Borrower, that there
are no circumstances or conditions present at the related Mortgaged
Property for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations;
(iii) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan that would result in an Adverse REMIC Event with respect to
any REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool;
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(iv) subject to applicable law, the Mortgage Loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any
Mortgage Loan unless all related fees and expenses are paid by the
Borrower;
(v) neither the Master Servicer nor the Special Servicer shall permit
any Borrower to add or substitute any real estate collateral for its
Mortgage Loan unless the Master Servicer or the Special Servicer, as
applicable, shall have first (A) determined in its reasonable, good faith
judgment, based upon a Phase I Environmental Assessment (and any additional
environmental testing that the Master Servicer or the Special Servicer, as
applicable, deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, at the expense of
the Borrower, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations and (B) received written confirmation
from each Rating Agency that such addition or substitution of collateral
will not, in and of itself, result in an Adverse Rating Event with respect
to any Class of Rated Certificates; and
(vi) neither the Master Servicer nor the Special Servicer shall
release, including in connection with a substitution contemplated by clause
(v) above, any collateral securing an outstanding Mortgage Loan, except as
provided in Section 3.09(d), or except where a Mortgage Loan (or, in the
case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the good faith and reasonable judgment of the Master Servicer or
the Special Servicer, as applicable, materially and adversely affect the
Net Operating Income being generated by or the use of the related Mortgaged
Property, or (2) there is a corresponding principal pay down of such
Mortgage Loan in an amount at least equal to the appraised value of the
collateral to be released (or substitute collateral with an appraised value
at least equal to that of the collateral to be released, is delivered), (B)
the remaining Mortgaged Property (together with any substitute collateral)
is, in the Special Servicer's good faith and reasonable judgment, adequate
security for the remaining Mortgage Loan and (C) such release would not, in
and of itself, result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vi) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Mortgage Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Borrower within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vi) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower if, in
its reasonable, good faith judgment, such opposition would not ultimately
prevent the confirmation of such plan or one substantially similar; and
provided, further, that, notwithstanding clause (vi) above, neither the Master
Servicer nor the Special Servicer shall be required to obtain any confirmation
of the Certificate ratings from the Rating Agencies in order to grant
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easements that do not materially affect the use or value of a Mortgaged Property
or the Borrower's ability to make any payments with respect to the related
Mortgage Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have any
liability to the Trust, the Certificateholders or any other Person if its
analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Master Servicer or the
Special Servicer, as applicable, and consistent with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a),
shall not, for purposes of calculating monthly distributions and reporting
information to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit or that such interest may actually be
capitalized; provided, however, that this sentence shall not limit the rights of
the Master Servicer or the Special Servicer on behalf of the Trust to enforce
any obligations of the related Borrower under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or the Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Borrower pay to it a reasonable or customary fee (which shall in no
event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan)
for the additional services performed in connection with such request, together
with any related costs and expenses incurred by it. All such fees collected by
the Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Mortgage Loans pursuant to this
Section 3.20 shall be in writing. Each of the Special Servicer and the Master
Servicer shall notify the other such party, each Rating Agency, the Trustee and
the Controlling Class Representative, in writing, of any modification, waiver,
amendment or other action entered into or taken thereby in respect of any
Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the other such party), an original counterpart of
the agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within ten Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver or
amendment agreed to by the Special Servicer or Master Servicer pursuant to
Section 3.20(a) above, the Special Servicer or the Master Servicer, as
applicable, shall deliver to the other such party, the Trustee and the Rating
Agencies an Officer's Certificate certifying that all of the requirements of
Section 3.20(a) have been met and setting forth in reasonable detail the basis
of the determination made by it pursuant to Section 3.20(a)(ii); provided that,
if such modification, waiver or amendment involves an extension of the maturity
of any Mortgage Loan, such Officer's Certificate shall be delivered to the
Master Servicer or Special Servicer, as applicable, the Trustee and the Rating
Agencies before the modification, waiver or amendment is agreed to.
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(f) With respect to any ARD Loan after its Anticipated Repayment Date, the
Master Servicer shall be permitted, in its discretion, to waive (such waiver to
be in writing addressed to the related Borrower, with a copy to the Trustee) all
or any portion of the accrued Post-ARD Additional Interest in respect of such
ARD Loan if such ARD Loan is a Performing Mortgage Loan and if, prior to the
related maturity date, the related Borrower has requested the right to prepay
such ARD Loan in full together with all payments required by the related
Mortgage Loan documents in connection with such prepayment except for such
accrued Post-ARD Additional Interest, provided that the Master Servicer has
determined, in its reasonable, good faith judgment, that waiving such Post-ARD
Additional Interest is in accordance with the Servicing Standard. The Master
Servicer shall prepare all documents necessary and appropriate to effect any
such waiver and shall coordinate with the related Borrower for the execution and
delivery of such documents.
(g) In connection with granting an extension of the maturity date of any
Mortgage Loan in accordance with Section 3.20(a), the Special Servicer, in the
case of a Specially Serviced Mortgage Loan, and the Master Servicer, in the case
of a Performing Mortgage Loan, shall each cause the related Borrower to agree,
if it has not already done so pursuant to the existing Mortgage Loan documents,
to thereafter deliver to the Special Servicer, the Trustee and the Controlling
Class Representative audited operating statements on a quarterly basis with
respect to the related Mortgaged Property, provided that the Special Servicer or
the Master Servicer, as the case may be, may, in its sole discretion, waive the
requirement that such statements be audited.
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Master Servicer shall immediately give notice
thereof to the Controlling Class Representative, and if the Master Servicer is
not also the Special Servicer, the Master Servicer shall immediately give notice
thereof, and shall deliver the related Servicing File, to the Special Servicer
and shall use its best efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. To the extent such is in the possession of the Master Servicer or
any Sub-Servicer thereof, the information, documents and records to be delivered
by the Master Servicer to the Special Servicer pursuant to the prior sentence
shall include, but not be limited to, financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, title insurance policies,
UCC's and tenant estoppels. The Master Servicer shall use its best efforts to
comply with the preceding two sentences within five Business Days of the
occurrence of each related Servicing Transfer Event. No later than 10 Business
Days before the Master Servicer is required to deliver a copy of the related
Servicing File to the Special Servicer, it shall review such Servicing File and
request from the Trustee any material documents that it is aware are missing
from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's
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right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Borrower generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations hereunder, each
of the Master Servicer and the Special Servicer shall be entitled to rely upon
written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may enter into Sub-Servicing Agreements to provide for the performance
by third parties of any or all of their respective obligations hereunder
(including the performance on a regular basis by third parties of discrete tasks
in respect of a discrete number of assets), provided that, in each case, the
Sub-Servicing Agreement, including any amendments thereto and modifications
thereof: (i) insofar as it affects the Trust, is consistent with this Agreement,
including Section 7.01(a), in all material respects and requires the
Sub-Servicer to comply in all material respects with all of the applicable
conditions of this Agreement; (ii) provides that if the Master Servicer or the
Special Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including by reason of an Event of Default), the Trustee or
its designee or any other successor to the Master Servicer or the Special
Servicer, as the case may be, may thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of the
Master Servicer or the Special Servicer, as the case may be, under such
agreement or, alternatively, may terminate such Sub-Servicing Agreement without
cause and without payment of any penalty or termination fee (provided, however,
that neither the Special Sub-Servicing Agreement nor any Designated Sub-Servicer
Agreement may be terminated except for cause, which will include the occurrence
of any Adverse Rating Event resulting from the subject Sub-Servicer's acting in
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such capacity and, in the case of each Designated Sub-Servicer Agreement,
subsequent to the first anniversary of the Closing Date, the failure of the
subject Designated Sub-Servicer to maintain at least the minimum primary
servicer rating from Fitch); (iii) provides that the Trustee, for the benefit of
the Certificateholders, shall be a third party beneficiary under such agreement,
but that (except to the extent the Trustee or its designee assumes the
obligations of the Master Servicer or the Special Servicer, as the case may be,
thereunder as contemplated by the immediately preceding clause (ii), and except
with respect to the obligations of any successor Master Servicer under the
Designated Sub-Servicer Agreements) none of the Trustee, any successor Master
Servicer or Special Servicer, as the case may be, or any Certificateholder shall
have any duties under such agreement or any liabilities arising therefrom except
as explicitly set forth herein; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty; (v) does not permit
the Sub-Servicer (other than the Special Sub-Servicer) to enter into or consent
to any modification, waiver or amendment or otherwise take any action on behalf
of the Master Servicer or Special Servicer, as the case may be, contemplated by
Section 3.20 hereof without the consent of the Master Servicer or Special
Servicer, as the case may be, provided, however, that the Sub-Servicing
Agreement shall not require a Sub-Servicer to seek the consent of the Master
Servicer or Special Servicer (whichever retained such Sub-Servicer) in order to
approve (A) waivers of minor (in the Sub-Servicer's good faith and reasonable
judgment) covenant defaults (other than financial covenants), (B) releases of
non-material parcels of a Mortgaged Property (provided that releases as to which
the related Mortgage Loan documents expressly require the mortgagee thereunder
to make such releases upon the satisfaction of certain conditions shall be made
as required by the Mortgage Loan documents), and (C) grants of easements that do
not materially affect (in Sub-Servicer's good faith and reasonable judgment) the
use or value of a Mortgaged Property or the Borrower's ability to make any
payment with respect to the related Mortgage Loan; provided that any such
modification, waiver, or amendment (W) would not in any way affect a payment
term of the subject Mortgage Loan or materially and adversely affect the
security for the subject Mortgage Loan, (X) would not constitute a "significant
modification" of the subject Mortgage Loan pursuant to Treasury Regulation
Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
any Grantor Trust Pool and (Y) would be consistent with the Servicing Standard;
and (vi) does not permit the Sub-Servicer any greater rights of indemnification
out of the Trust Fund than those that the Master Servicer or the Special
Servicer, as the case may be, have pursuant to Section 6.03; provided that the
appointment by the Master Servicer or Special Servicer of a third-party
contractor for the purpose of performing discrete, ministerial functions shall
not be subject to this Section 3.22 (except that the Master Servicer or the
Special Servicer, as the case may be, shall remain responsible for the actions
of such third-party contractors and shall pay all fees and expenses of such
third-party contractors, unless otherwise expressly provided herein). No
Sub-Servicing Agreement entered into by the Master Servicer shall purport to
delegate or effectively delegate to the related Sub-Servicer any of the rights
or obligations of the Special Servicer with respect to any Specially Serviced
Mortgage Loan or otherwise. Each Sub-Servicing Agreement entered into by the
Special Servicer shall relate only to Specially Serviced Mortgage Loans and any
REO Properties and shall not purport to delegate or effectively delegate to the
related Sub-Servicer any of the rights or obligations of the Master Servicer
with respect to any Mortgage Loan, including any Specially Serviced Mortgage
Loan. The Master Servicer and the Special Servicer shall each notify the other,
the Trustee and the Depositor in writing promptly of the appointment by it of
any Sub-Servicer. The Master Servicer and the Special Servicer shall each
deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the
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Master Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make Advances shall
be deemed to have been advanced by the Master Servicer or the Special Servicer,
as the case may be, out of its own funds and, accordingly, such Advances shall
be recoverable by such Sub-Servicer in the same manner and out of the same funds
as if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. Such Advances shall accrue interest in accordance with Sections
3.11(g) and/or 4.03(d), such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer and the
Special Servicer shall each be deemed to have received any payment when a
Sub-Servicer retained by it receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the Certificateholders or the Trust) monitor the performance
and enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master Servicer
or the Special Servicer, as applicable, in its good faith and reasonable
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, including any provisions thereof
limiting the ability of the Master Servicer or the Special Servicer, as
applicable, to terminate a Sub-Servicer, the Master Servicer and the Special
Servicer shall each have the right to remove a Sub-Servicer retained by it at
any time it considers such removal to be in the best interests of
Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve as such
under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that neither
the Special Sub-Servicing Agreement nor any Designated Sub-Servicer Agreement
may be so terminated except for cause, which will include the occurrence of any
Adverse Rating Event resulting from the subject Sub-Servicer's acting in such
capacity and, in the case of each Designated Sub-Servicer Agreement, subsequent
to the first anniversary of the Closing Date, the failure of the subject
Designated Sub-Servicer to maintain at least the minimum primary servicer rating
from Fitch. In any event, if a Sub-Servicing Agreement is to be assumed by the
Trustee or other successor Master Servicer or Special Servicer, then the Master
Servicer or the Special Servicer, as applicable, at its expense shall, upon
request of the Trustee, deliver to the assuming party all documents and records
relating to such Sub-Servicing Agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected and held on behalf of
it thereunder, and otherwise use reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the
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performance of their respective obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if each alone were servicing and administering the
Mortgage Loans or REO Properties for which it is responsible. No appointment of
a Sub-Servicer shall result in any additional expense to the Trustee, the
Certificateholders or the Trust other than those contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing Agreement
(other than the Special Sub-Servicing Agreement) unless either: (i) the Rating
Agencies have confirmed in writing that entering into such agreement will not
result in an Adverse Rating Event; or (ii) such agreement relates to one or more
Mortgage Loans (including any such Mortgage Loan(s) previously sub-serviced in
accordance with this Section 3.22) that together represent less than 25% of the
aggregate outstanding principal balance of all Specially Serviced Mortgage
Loans. It is hereby acknowledged and agreed by all parties hereto that KCCI
shall be the initial Special Sub-Servicer hereunder and that the Special
Servicer and KCCI shall enter into the Special Sub-Servicing Agreement whereby
the Special Servicer may delegate to KCCI any and all of the Special Servicer's
duties and obligations hereunder with respect to the Specially Serviced Mortgage
Loans and REO Properties; provided that KCCI may not receive any more
compensation for performing such duties and obligations than would have been
payable to the Special Servicer if it performed such duties and obligations
directly; and provided, further, that the Special Servicer shall remain liable
and responsible for the timely performance of such delegated duties and
obligations as if no such delegation had occurred. Without limiting the
generality of the foregoing, the parties hereto acknowledge and agree that,
pursuant to the Special Sub-Servicing Agreement, the Special Servicer, without
relinquishing any of its liability and responsibility hereunder for the
performance thereof, will delegate to the Special Sub-Servicer all of its duties
and obligations, and some of its rights, set forth in this Agreement; and, in
connection therewith, and until the Special Servicer provides written directions
to the contrary in accordance with the terms of the Special Sub-Servicing
Agreement, the Special Servicer hereby authorizes and directs the Depositor, the
Master Servicer and the Trustee to deal directly with the Special Sub-Servicer
as the Special Servicer's agent with respect to such rights, duties and
obligations, provided that the Depositor, the Master Servicer, the Special
Sub-Servicer and the Trustee shall copy the Special Servicer on all
correspondence between such parties. The Special Sub-Servicer hereby makes, for
the benefit of the other parties hereto and the Certificateholders, each of its
representations, warranties and covenants contained in the Special Sub-Servicing
Agreement. All successors to KCCI, in its capacity as the sub-servicer under the
Special Sub-Servicing Agreement, shall be the Special Sub-Servicer hereunder,
and the Special Servicer shall cause each such successor to execute and deliver
a written assumption of all the duties and obligations of the Special
Sub-Servicer hereunder, which written assumption shall be for the benefit of
each of the other parties hereto and the Certificateholders.
(g) Each successor Special Servicer hereunder shall assume the
responsibilities and obligations of the Special Servicer under the Special
Sub-Servicing Agreement.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or,
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in the case of Book-Entry Certificates, the Certificate Owners) of Certificates
representing more than 50% of the Class Principal Balance of the Controlling
Class, (ii) the resignation or removal of the Person acting as Controlling Class
Representative or (iii) a determination by the Trustee that the Controlling
Class has changed, the Trustee shall promptly notify the Depositor and the
Holders (and, in the case of Book-Entry Certificates, to the extent actually
known to a Responsible Officer of the Trustee or identified thereto by the
Depositary or the Depositary Participants, the Certificate Owners) of the
Controlling Class that they may select a Controlling Class Representative. Such
notice shall set forth the process established by the Trustee for selecting a
Controlling Class Representative, which process may include the designation of
the Controlling Class Representative by the Majority Controlling Class
Certificateholder by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee with (i) written confirmation of its acceptance of
such appointment, (ii) written confirmation of its agreement to keep
confidential all information received by it with respect to the Trust and its
assets, (iii) an address and telecopy number for the delivery of notices and
other correspondence and (iv) a list of officers or employees of such Person
with whom the parties to this Agreement may deal (including their names, titles,
work addresses and telecopy numbers).
(b) Within ten Business Days (or as soon thereafter as practicable if the
Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Trustee has actual knowledge and otherwise promptly upon request from the
Master Servicer or the Special Servicer, the Trustee shall deliver to each of
the Master Servicer and the Special Servicer the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depositary or the Depositary Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Holders (or, in the
case of Book-Entry Certificates, subject to Section 5.06, by the Depositary or
the Certificate Owners) of such Certificates, and the Master Servicer and the
Special Servicer shall be entitled to rely on such information provided by the
Trustee with respect to any obligation or right hereunder that the Master
Servicer and the Special Servicer may have to deliver information or otherwise
communicate with the Controlling Class Representative or any of the Holders (or,
if applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two Business Days of the selection, resignation or removal of
a Controlling Class Representative, the Trustee shall notify the other parties
to this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as such by
giving written notice to the Trustee and to each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant to
this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of Book-Entry
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Certificates, Certificate Owner) of the Controlling Class, in writing, of the
resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall be
borne by the Holders (or, if applicable, the Certificate Owners) of Certificates
of the Controlling Class, pro rata according to their respective Percentage
Interests in such Class, and not by the Trust. Notwithstanding the foregoing, if
a claim is made against the Controlling Class Representative by a Borrower with
respect to this Agreement or any particular Mortgage Loan, the Controlling Class
Representative shall immediately notify the Trustee, the Master Servicer and the
Special Servicer, whereupon (if the Special Servicer, the Master Servicer or the
Trust are also named parties to the same action and, in the sole judgment of the
Special Servicer, (i) the Controlling Class Representative had acted in good
faith, without negligence or willful misfeasance with regard to the particular
matter, and (ii) there is no potential for the Special Servicer, the Master
Servicer or the Trust to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
shall, subject to Section 6.03, assume the defense of any such claim against the
Controlling Class Representative. This provision shall survive the termination
of this Agreement and the termination or resignation of the Controlling Class
Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the actions of the Special Servicer identified
in clauses (i) through (vii) of the following sentence. In addition,
notwithstanding anything in any other Section of this Agreement to the contrary,
but in all cases subject to Section 3.24(b), the Special Servicer will not be
permitted to take any of the actions identified in clauses (i) through (vii) of
this sentence, unless and until the Special Servicer has notified the
Controlling Class Representative in writing of the Special Servicer's intent to
take the particular action and the Controlling Class Representative consented
(or has failed to object) thereto in writing within ten Business Days of having
been notified thereof in writing and having been provided with all reasonably
requested information with respect thereto:
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver of a monetary term
(including the timing of payments) or any material non-monetary term of a
Specially Serviced Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a Specially
Serviced Mortgage Loan;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Specially Serviced Mortgage Loan
(other than in accordance with the terms of, or upon satisfaction of, such
Mortgage Loan); and
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(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan (other than in accordance with the terms
of such Mortgage Loan).
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
(b) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
prior to acting, and the provisions of this Agreement requiring such shall be of
no effect, during the period prior to the initial selection of a Controlling
Class Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected, and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a), may
(and the Special Servicer shall ignore and act without regard to any such
advice, direction or objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Special
Servicer to violate applicable law, the terms of any Mortgage Loan or any other
Section of this Agreement, including the Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
any Grantor Trust Pool, (C) expose the Trust, the Depositor, the Master
Servicer, the Special Servicer, any Fiscal Agent, the Trustee, or any of their
respective Affiliates, officers, directors, employees or agents, to any material
claim, suit or liability, or (D) expand the scope of the Master Servicer's or
the Special Servicer's responsibilities under this Agreement.
Furthermore, the Special Servicer shall not be obligated to obtain the
approval of the Controlling Class Representative for any actions to be taken by
the Special Servicer with respect to any particular Mortgage Loan if (i) the
Special Servicer has, in accordance with Section 3.24(a), notified the
Controlling Class Representative in writing of the various actions that the
Special Servicer proposes to take with respect to the work-out or liquidation of
such Mortgage Loan and has provided the Controlling Class Representative with
all information reasonably requested by the Controlling Class Representative
with respect to such actions, and (ii) for ten Business Days following its
receipt of such notice and such information, the Controlling Class
Representative has objected to all of those proposed actions and has failed to
suggest any alternative actions that the Special Servicer considers to be
consistent with the Servicing Standard.
(c) Each Certificateholder acknowledges and agrees, by its acceptance of
its Certificates, that: (i) the Controlling Class Representative may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
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SECTION 3.25. Replacement of Special Servicer.
(a) Subject to Section 3.25(c), for so long as KCCI acts as both Master
Servicer and Special Sub-Servicer, it may, upon not less than 30 days' prior
written notice to the other parties hereto, remove Midland as Special Servicer
hereunder (with or without cause) and appoint a successor Special Servicer.
(b) Subject to Section 3.25(c), the Controlling Class Representative may,
upon not less than 30 days' prior written notice to the respective parties
hereto, remove any existing Special Servicer hereunder (with or without cause)
and appoint a successor Special Servicer; provided that, if any such removal is
made without cause, then the costs of transferring the special servicing
responsibilities to a successor Special Servicer will be paid by the
Certificateholders of the Controlling Class.
(c) No removal of the Special Servicer and appointment of a successor
thereto pursuant to Section 3.25(a) or Section 3.25(b) shall be effective until:
(i) the Trustee shall have received (A) written confirmation from each of the
Rating Agencies that such removal and appointment will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates, (B) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the Person designated to be the successor Special
Servicer, and (C) an Opinion of Counsel (which shall not be an expense of the
Trustee or the Trust) substantially to the effect that (1) the removal of the
existing Special Servicer and the appointment of the Person designated to serve
as successor Special Servicer is in compliance with this Section 3.25, (2) such
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (3) the Acknowledgment of
Proposed Special Servicer, the form of which is attached hereto as Exhibit I-2,
has been duly authorized, executed and delivered by such designated Person and
(4) upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer, such designated Person shall be bound by the terms of this Agreement
and, subject to customary bankruptcy and insolvency exceptions and customary
equity exceptions, this Agreement shall be enforceable against such designated
Person in accordance with its terms; and (ii) if the existing Special Servicer
has been removed by the Controlling Class Representative without cause, the
Certificateholders of the Controlling Class have delivered to the Trustee and
the terminated Special Servicer such Certificateholders joint and several
undertaking to pay any expenses incurred by the Trustee and such terminated
Special Servicer in connection with the transfer of special servicing
responsibilities to a successor Special Servicer.
(d) Any Special Servicer terminated pursuant to Section 3.25(a) or Section
3.25(b) shall be deemed to have been so terminated simultaneously with the
designated successor's becoming the Special Servicer hereunder; provided that
(i) the terminated Special Servicer shall be entitled to receive, in connection
with its termination, payment out of the Certificate Account of all of its
accrued and unpaid Special Servicing Fees and reimbursement from the successor
Special Servicer of all outstanding Servicing Advances made by the terminated
Special Servicer and all unpaid Advance Interest accrued on such outstanding
Servicing Advances (in which case the successor Special Servicer shall be deemed
to have made such Servicing Advances at the same time that the terminated
Special Servicer had actually made them), (ii) the terminated Special Servicer
shall thereafter be entitled to Workout Fees, as and to the extent expressly
permitted by Section 3.11(c), and (iii) such terminated Special Servicer shall
continue to be entitled to the benefits of Section 6.03, notwithstanding any
such termination; and provided, further, that the terminated Special Servicer
shall continue to be obligated to pay (and entitled to receive) all other
amounts accrued to (or owing by) it under this Agreement on or
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prior to the effective date of such termination. Such terminated Special
Servicer shall cooperate with the Trustee and the replacement Special Servicer
in effecting the transfer of the terminated Special Servicer's responsibilities
and rights hereunder to its successor, including the transfer within two
Business Days to the replacement Special Servicer for administration by it of
all cash amounts that at the time are or should have been credited by the
terminated Special Servicer to the REO Account or to any Servicing Account or
Reserve Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of the terminated Special Servicer with
respect to any Mortgage Loan or REO Property.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually collected with respect to
any Performing Mortgage Loan during any Collection Period, shall be applied for
the following purposes and in the following order, in each case to the extent of
the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicer or
the Special Servicer, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such
Mortgage Loan as to which such Default Charges were collected;
second, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer
since the Closing Date with respect to such Mortgage Loan as to which such
Default Charges were collected, which interest was paid from a source other
than Default Charges on such Mortgage Loan; and
third, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer.
(b) Any and all Default Charges that are actually collected with respect to
any Specially Serviced Mortgage Loan or REO Mortgage Loan during any Collection
Period, shall be applied for the following purposes and in the following order,
in each case to the extent of the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicer or
the Special Servicer, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be,
as to which such Default Charges were collected;
second, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer
since the Closing Date with respect to such Specially Serviced Mortgage
Loan or REO Mortgage Loan, as the case may be, as to which such Default
Charges were collected, which interest was paid from a source other than
Default Charges on such Specially Serviced Mortgage Loan or REO Mortgage
Loan, as the case may be; and
third, to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(c) Default charges applied to reimburse the Trust pursuant to clause
second of either Section 3.26(a) and Section 3.26(b) are intended to be part of
the Master Servicer Remittance Amount
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for the Master Servicer Remittance Date next following the Collection Period
during which they were received, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Pool.
Default Charges applied to reimburse the Trust pursuant to clause second of
either Section 3.26(a) or Section 3.26(b) shall be deemed to offset payments of
Advance Interest in the chronological order in which they were made (whereupon
such Advance Interest shall thereafter be deemed to have been paid out of
Default Charges).
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on deposit
in the Distribution Account for the following purposes and in the following
order of priority, in each case to the extent of the remaining portion of the
Standard Available Distribution Amount for such Distribution Date:
first, to make distributions of interest to the Holders of the Class
A-1A Certificates, the Holders of the Class A-1B Certificates and the
Holders of the Class S Certificates, up to, and pro rata as among such
Classes of Certificateholders based on, their respective Current Interest
Distribution Amounts for such Distribution Date;
second, to make distributions of interest to the Holders of the Class
A-1A Certificates, the Holders of the Class A-1B Certificates and the
Holders of the Class S Certificates, up to, and pro rata as among such
Classes of Certificateholders based on, their respective Carryforward
Interest Distribution Amounts for such Distribution Date;
third, to make distributions of principal to the Holders of the Class
A-1A Certificates and/or the Holders of the Class A-1B Certificates as
follows--
(i) prior to the occurrence of the Final Distribution Date or any
Senior Principal Distribution Cross-Over Date, sequentially to the
Holders of the Class A-1A Certificates, up to their Principal
Distribution Amount for such Distribution Date, and then to the
Holders of the Class A-1B Certificates, up to their Principal
Distribution Amount for such Distribution Date, and
(ii) on and after the occurrence of any Senior Principal Distribution
Cross-Over Date, and in any event on the Final Distribution Date, to
the Holders of the Class A-1A Certificates and the Holders of the
Class A-1B Certificates, up to, and pro rata as between such Classes
of Certificateholders based on, their respective Principal
Distribution Amounts for such Distribution Date; and
fourth, to reimburse the Holders of the Class A-1A Certificates and
the Holders of the Class A-1B Certificates for any Unfunded Principal
Balance Reductions previously incurred thereby, up to, and pro rata as
between such Classes of Certificateholders based on, their respective Loss
Reimbursement Amounts for such Distribution Date.
(b) On each Distribution Date, following the distributions on the Senior
Certificates to be made on such date pursuant to Section 4.01(a), the Trustee
shall apply any amounts remaining on deposit in the Distribution Account to make
distributions to the Holders of the respective Classes of the Subordinate
Principal Balance Certificates, in the following order and, in the case of each
such Class of Subordinate Principal Balance Certificates, up to the lesser of
(i) the total of the Current Interest Distribution Amount, the Carryforward
Interest Distribution Amount, the Principal Distribution Amount and the Loss
Reimbursement Amount with respect to such Class of Certificates for such
Distribution
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Date and (ii) the remaining portion of the Standard Available Distribution
Amount for such Distribution Date: first, to the Holders of the Class A-2
Certificates; second, to the Holders of the Class A-3 Certificates; third, to
the Holders of the Class A-4 Certificates; fourth, to the Holders of the Class
B-1 Certificates; fifth, to the Holders of the Class B-2 Certificates; sixth, to
the Holders of the Class B-3 Certificates; seventh, to the Holders of the Class
B-4 Certificates; eighth, to the Holders of the Class B-5 Certificates; ninth,
to the Holders of the Class B-6 Certificates; tenth, to the Holders of the Class
B-7 Certificates; eleventh, to the Holders of the Class B-8 Certificates;
twelfth, to the Holders of the Class B-9 Certificates; and, thirteenth, to the
Holders of the Class C Certificates. Amounts distributable to the Holders of any
Class of Subordinate Principal Balance Certificates on any Distribution Date
pursuant to this Section 4.01(b) shall be applied:
first, to make distributions of interest to the Holders of such Class
of Certificates, up to their Current Interest Distribution Amount for such
Distribution Date;
second, to make distributions of interest to the Holders of such Class
of Certificates, up to their Carryforward Interest Distribution Amount for
such Distribution Date;
third, to make distributions of principal to the Holders of such Class
of Certificates, up to their Principal Distribution Amount for such
Distribution Date; and
fourth, to reimburse the Holders of such Class of Certificates for any
Unfunded Principal Balance Reductions previously incurred thereby, up to
their Loss Reimbursement Amount for such Distribution Date.
(c) On each Distribution Date, following the distributions on the REMIC III
Regular Interest Certificates to be made on such date pursuant to Sections
4.01(a) and 4.01(b), the Trustee shall withdraw any portion of the Standard
Available Distribution Amount for such Distribution Date then remaining on
deposit in the Distribution Account and shall distribute the full amount of such
remaining funds to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account and apply, for the following purposes and in the following
order of priority, any amount then on deposit in the Distribution Account that
represents a Yield Maintenance Charge collected with respect to any Mortgage
Loan as of the end of the related Collection Period (other than a Yield
Maintenance Charge equal to the Yield Maintenance Minimum Amount).
first, to make distributions of additional interest to the Holders of
the respective Classes of the Yield Maintenance Certificates, up to, and
pro rata as among such Classes of Certificateholders based on, their
respective applicable Additional Yield Amounts; and
second, to make distributions of additional interest to the Holders of
the Class S Certificates, up to the remaining portion, if any, of such
Yield Maintenance Charge.
For purposes of determining the portion of any Yield Maintenance Charge
that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the applicable "Additional Yield Amount"
shall be an amount equal to the product of: (i) the amount of such Yield
Maintenance Charge that is so distributable; multiplied by (ii) a fraction (not
greater than one or less than zero), the numerator of which is equal to the
excess, if any, of (A) the Pass-Through Rate applicable to such Class of Yield
Maintenance Certificates for the corresponding Interest Accrual
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Period, over (B) the relevant Discount Rate, and the denominator of which is
equal to the excess, if any, of (X) the Mortgage Rate for the Mortgage Loan in
respect of which such Yield Maintenance Charge was received, over (Y) the
relevant Discount Rate; multiplied by (iii) a fraction (not greater than one or
less than zero), the numerator of which is equal to the Principal Distribution
Amount with respect to such Class of Yield Maintenance Certificates for such
Distribution Date, and the denominator of which is equal to the Total Principal
Distribution Amount for such Distribution Date.
For purposes of determining the portion of any Yield Maintenance Charge
that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the relevant "Discount Rate" shall be the
U.S. Treasury rate that was, or from which was derived, the discount rate used
to calculate such Yield Maintenance Charge, with such U.S. Treasury rate
converted to a monthly equivalent rate (regardless of whether any similar
conversion occurred at the loan level). The relevant Discount Rate shall be
provided promptly by the Master Servicer to the Trustee.
On each Distribution Date, the Trustee shall withdraw from the Distribution
Account and pay to the Holders of the Class S Certificates, as additional
interest, any amount then on deposit in the Distribution Account that represents
a Yield Maintenance Charge that was collected with respect to any Mortgage Loan
as of the end of the related Collection Period and that is equal to the Yield
Maintenance Minimum Amount.
On each Distribution Date, the Trustee shall withdraw from the Distribution
Account and apply, for the following purposes and in the following order of
priority, any amount then on deposit in the Distribution Account that represents
a Prepayment Premium:
first, to make distributions of additional interest to the Holders of
the respective Classes of the Yield Maintenance Certificates, if any,
entitled to distributions of principal on that Distribution Date, up to a
total amount equal to 25% of the amount of that Prepayment Premium, and
allocable as among such Classes of Certificateholders based on the
respective amounts of principal distributable thereon on such Distribution
Date; and
second, to make distributions of additional interest to the Holders of
the Class S Certificates, up to the remaining 75% of such Prepayment
Premium.
(e) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts then on deposit in the Class D Sub-Account of
the Distribution Account that represent Post-ARD Additional Interest collected
in respect of the ARD Loans during or prior to the related Collection Period and
shall distribute such amounts to the Holders of the Class D Certificates.
On each Distribution Date, the Trustee shall withdraw from the Distribution
Account any amount then on deposit in the Class E Sub-Account of the
Distribution Account that represents any portion of the Holiday Inn Orlando
Closing Fee collected during or prior to the related Collection Period and shall
distribute such amount to the Holders of the Class E Certificates.
(f) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among the Holders of such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or
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other entity having appropriate facilities therefor, if such Holder shall have
provided the Trustee with wiring instructions no later than the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), and otherwise shall be made by
check mailed to the address of such Holder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any portion of a previously incurred Unfunded Principal Balance
Reduction allocable to such Certificate) will be made in like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Principal Balance Certificate in reimbursement of any
portion of an Unfunded Principal Balance Reduction allocable to such
Certificate, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the Holder that surrendered such Certificate at the last
address set forth for such Holder in the Certificate Register or at any other
address of which the Trustee was subsequently notified in writing.
(g) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depositary, as Holder thereof, and the Depositary shall be
responsible for crediting the amount of such distribution to the accounts of its
Depositary Participants in accordance with its normal procedures. Each
Depositary Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each such indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the parties hereto shall
have any responsibility therefor except as otherwise provided by this Agreement
or applicable law. The Trustee and the Depositor shall perform their respective
obligations under the Letter of Representations Among the Depositor, the Trustee
and the Initial Depositary, a copy of which Letter of Representations is
attached hereto as Exhibit C.
(h) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts previously distributed on
the Certificates in accordance with this Agreement.
(i) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date (such final distribution to be
determined, in the case of a Class of Principal Balance Certificates, without
regard to any possible future reimbursement of any portion of a previously
incurred Unfunded Principal Balance Reduction in respect of such Class), the
Trustee shall, as promptly as possible (and, in any event, no later than three
Business Days) after the related Determination Date, mail to each Holder of such
Class of Certificates of record on such date a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at
the office of the Certificate Registrar or at such other location
therein specified, and
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(ii) no interest shall accrue on such Certificates from and after the
end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and credited to,
and shall be held uninvested in trust in, the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(i) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If any Certificates as to which notice
has been given pursuant to this Section 4.01(i), shall not have been surrendered
for cancellation by the second anniversary of the delivery of the second notice,
then, subject to applicable escheat laws, the Trustee shall distribute to the
Class R Certificateholders all unclaimed funds.
(j) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from payments or advances of interest or original issue
discount to any Certificateholder pursuant to federal withholding requirements,
the Trustee shall indicate the amount withheld to such Certificateholder.
(k) All distributions of interest made with respect to the Class S
Certificates on each Distribution Date pursuant to clause first of Section
4.01(a) shall be deemed to have first been distributed from REMIC II to REMIC
III on such Distribution Date as interest with respect to the various REMIC II
Regular Interests, up to, and pro rata as among the REMIC II Regular Interests
based on, the Class S Portion of the Current Interest Distribution Amount with
respect to each such REMIC II Regular Interest for such Distribution Date. All
distributions of interest made with respect to the Class S Certificates on each
Distribution Date pursuant to clause second of Section 4.01(a) shall be deemed
to have first been distributed from REMIC II to REMIC III on such Distribution
Date as interest with respect to the various REMIC II Regular Interests, up to,
and pro rata as among the REMIC II Regular Interests based on, the Class S
Portion of the Carryforward Interest Distribution Amount with respect to each
such REMIC II Regular Interest for such Distribution Date. In addition, all
distributions of additional interest (in the form of Prepayment Premiums and
Yield Maintenance Charges) made with respect to the Class S Certificates on each
Distribution Date pursuant to Section 4.01(d) shall be deemed to have first been
distributed from REMIC II to REMIC III on such Distribution Date as additional
interest (in the form of Prepayment Premiums and Yield Maintenance Charges) with
respect to the various REMIC II Regular Interests, pro rata in accordance with
the respective amounts of principal deemed distributed with respect to each such
REMIC II Regular Interest for such Distribution Date as provided in the
following paragraph.
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All distributions made with respect to each Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a), Section
4.01(b) or Section 4.01(d) shall be deemed to have first been distributed from
REMIC II to REMIC III on such Distribution Date with respect to the
Corresponding REMIC II Regular Interest for such Class of Certificates. In each
case, if such distribution on any such Class of Principal Balance Certificates
was a distribution of interest, of principal, of additional interest (in the
form of Prepayment Premiums and Yield Maintenance Charges) or in reimbursement
of any related Unfunded Principal Balance Reductions with respect to such Class
of Certificates, then the corresponding distribution deemed to be made on the
Corresponding REMIC II Regular Interest for such Class of Certificates pursuant
to the preceding sentence shall be deemed also to be a distribution of interest,
of principal, of additional interest (in the form of Prepayment Premiums and
Yield Maintenance Charges) or in reimbursement of any related Unfunded Principal
Balance Reductions with respect to such REMIC II Regular Interest.
The actual distributions made by the Trustee on each Distribution Date with
respect to the Certificates pursuant to Section 4.01(a), Section 4.01(b),
Section 4.01(c) (to the extent such distributions relate to the REMIC III
Residual Interest) or Section 4.01(d), as applicable, shall be deemed to have
been so made from the amounts deemed distributed with respect to the REMIC II
Regular Interests on such Distribution Date pursuant to this Section 4.01(k).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(k), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(l) On each Distribution Date, immediately prior to making any actual
distributions on the Certificates pursuant to Section 4.01(a), Section 4.01(b)
or Section 4.01(c), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Trustee shall be deemed to
have made out of the Standard Available Distribution Amount for such
Distribution Date, the following distributions to REMIC II in the following
order of priority, in each case to the extent of the remaining portion of such
Standard Available Distribution Amount:
first, distributions of interest with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Current Interest Distribution Amounts
for such Distribution Date;
second, distributions of interest with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Carryforward Interest Distribution
Amounts for such Distribution Date;
third, distributions of principal with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Principal Distribution Amounts for
such Distribution Date; and
fourth, reimbursements of Unfunded Principal Balance Reductions with
respect to all of the REMIC I Regular Interests (including any REMIC I
Regular Interests whose Uncertificated Principal Balances have previously
been reduced to zero), up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Loss Reimbursement Amounts for such
Distribution Date.
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In addition, on each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Regular Interest Certificates pursuant to
Section 4.01(d), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Trustee shall be deemed to
have distributed to REMIC II each Prepayment Premium and Yield Maintenance
Charge then on deposit in the Distribution Account that was received on any
Mortgage Loan or REO Mortgage Loan during or prior to the related Collection
Period, such distribution to be deemed made with respect to the REMIC I Regular
Interest that relates to such Mortgage Loan or REO Mortgage Loan, as the case
may be.
The distributions deemed made by the Trustee on each Distribution Date with
respect to the REMIC II Regular Interests pursuant to Section 4.01(k), as well
as the distributions actually made by the Trustee on each Distribution Date with
respect to the Certificates pursuant to Section 4.01(a), Section 4.01(b),
Section 4.01(c) (to the extent such distributions relate to the REMIC II
Residual Interest or the REMIC III Residual Interest) or Section 4.01(d), shall
be deemed to have been so made from the amounts deemed distributed with respect
to the REMIC I Regular Interests on such Distribution Date pursuant to this
Section 4.01(l). Notwithstanding the deemed distributions on the REMIC I Regular
Interests described in this Section 4.01(l), actual distributions of funds from
the Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.
(a) Based solely on information provided to the Trustee by the Master
Servicer and the Special Servicer pursuant to Sections 3.12, 4.02(b) and
4.02(c), the Trustee shall prepare (or cause to be prepared) and, on each
Distribution Date, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Master Servicer, the Special
Servicer, the Underwriters, the Rating Agencies, the Controlling Class
Representative, each Certificateholder and, to the extent that the Trustee has
in accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, each Certificate Owner a statement substantially in
the form of, and containing the information set forth in, Exhibit E hereto,
including the Bond Level File and the Collateral Summary File (the "Trustee
Report"), detailing the distributions on such Distribution Date and the
performance, both in the aggregate and individually to the extent available, of
the Mortgage Loans and the Mortgaged Properties; provided that the Trustee need
not deliver to the Depositor, the Master Servicer, the Special Servicer, the
Underwriters, the Rating Agencies or the Controlling Class Representative any
Trustee Report that has been made available to such Person via the Trustee's
Internet Website as provided below; and provided, further, that the Trustee has
no affirmative obligation to discover the identities of Certificate Owners and
need only react to Persons claiming to be Certificate Owners in accordance with
Section 5.06.
On each Distribution Date, the Trustee shall provide or make available
electronically (or, upon request, by first class mail) to the Depositor, the
Underwriters, the Master Servicer, the Special Servicer, the Rating Agencies,
the Controlling Class Representative, each Certificateholder and each
Certificate Owner to which a Trustee Report was forwarded or otherwise made
available on such Distribution Date, at the same time that the Trustee Report is
delivered or otherwise made available thereto, each file and report comprising
the CMSA Investor Reporting Package (excluding the Loan Setup File), to the
extent received by the Trustee since the prior Distribution Date (or, in the
case of the initial Distribution Date, since the Closing Date).
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The Trustee shall have no obligation to provide the information or reports
described in this Section 4.02(a) until it has received the requisite
information or reports from the Master Servicer, and the Trustee shall not be in
default hereunder due to a delay in providing the Certificateholder Reports
caused by the Master Servicer's or Special Servicer's failure to timely deliver
any information or reports hereunder. None of the Master Servicer, the Special
Servicer or the Trustee shall be responsible for the accuracy or completeness of
any information supplied to it by a Borrower, each other or a third party, and
accepted by it in good faith, that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable. None of the Trustee, the Master
Servicer or the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Borrower, a third
party or each other.
The Trustee shall make available each month, to Certificateholders,
Certificate Owners, prospective investors and any other interested party, via
the Trustee's Internet Website, in a downloadable format, the Trustee Report,
Unrestricted Servicer Reports, Bond Level File, Collateral Summary File (which,
in each case, if applicable, will identify each Mortgage Loan by loan number and
property name) and, with the consent or at the direction of the Depositor, such
other information regarding the Certificates and/or the Mortgage Loans as the
Trustee may have in its possession; provided that, unless (i) the particular
report or information has been filed with the Commission pursuant to Section
8.15 or (ii) the Depositor has notified the Trustee that the DLJSC has sold the
Non-Registered Certificates to unaffiliated third parties, access to such
reports and information on the Trustee's Internet Website will be protected to
the same extent, and limited to the same Persons, as the Restricted Servicer
Reports. After the Trustee shall have received the notice from the Depositor
regarding the sale of the Non-Registered Certificates, as described in the
preceding sentence, the Trustee shall make the Trustee Report available to any
interested party via its fax-on-demand service. The Trustee shall make the
Restricted Servicer Reports available each month, via the Trustee's Internet
Website only, to any Certificateholder, Certificate Owner, any Person identified
by any Certificateholder or Certificate Owner as a prospective transferee of a
Certificate or interest therein, any party hereto, the Controlling Class
Representative, the Mortgage Loan Sellers, any Underwriter, or any Rating
Agency, upon receipt by the Trustee from such Person of a certification
substantially in the form of Exhibit L-1 or Exhibit L-2, as applicable;
provided, however, that the Trustee shall provide access to such reports to each
party hereto, the Controlling Class Representative, the Mortgage Loan Sellers,
each Underwriter and each Rating Agency without requiring such certification. In
addition, the Trustee is hereby directed and authorized to make available, as a
convenience to interested parties (and not in furtherance of the distribution of
the Prospectus or the Prospectus Supplement under the securities laws), this
Agreement, the Prospectus and the Prospectus Supplement via the Trustee's
Internet Website. The Trustee will make no representations or warranties as to
the accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's Internet Website shall be located at "www.ctslink.com/cmbs"
or at such other address as shall be specified by the Trustee from time to time
in the Trustee Report and in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Trustee's Internet Website and fax on demand servicer, 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.
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The Trustee shall be entitled to rely on but shall not be responsible for
the content or accuracy of any information provided by third parties for
purposes of preparing the Trustee Report and may affix thereto any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(b) By 12:00 p.m. New York City time on the second Business Day prior to
each Distribution Date, the Master Servicer shall deliver to the Trustee the
Loan Periodic Update File, reflecting information as of the close of business on
the last day of the Collection Period, in a mutually agreeable electronic
format. Such Loan Periodic Update File and any written information supplemental
thereto shall include such information with respect to the Mortgage Loans that
is reasonably required by the Trustee for purposes of making the calculations
and preparing the reports for which the Trustee is responsible pursuant to
Section 4.01, this Section 4.02, Section 4.04 or any other section of this
Agreement, as set forth in reasonable written specifications or guidelines
issued by the Trustee from time to time. Such information may be delivered by
the Master Servicer to the Trustee by telecopy or in such electronic or other
form as may be reasonably acceptable to the Trustee and the Master Servicer.
Notwithstanding the foregoing, because the Master Servicer will not receive
the Servicing Files until the Closing Date and will not have sufficient time to
review and analyze such Servicing Files before the initial Distribution Date,
the parties agree that the Loan Periodic Update File required to be delivered in
November 2000 will be based solely upon information generated from actual
collections and from information the Depositor delivers or causes to be
delivered to the Master Servicer (including but not limited to information
prepared by third party servicers of the Mortgage Loans with respect to the
period prior to the Closing Date). The Special Servicer shall from time to time
(and, in any event, as may be reasonably required by the Master Servicer)
provide the Master Servicer with such information in its possession regarding
the Specially Serviced Mortgage Loans and REO Properties as may be necessary for
the Master Servicer to prepare each report and any supplemental information to
be provided by the Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(c) Within a reasonable period of time after the end of each calendar year,
the Trustee shall prepare, or cause to be prepared, and mail to each Person who
at any time during the calendar year was a Certificateholder (i) a statement
containing the aggregate information set forth on page 2 of Exhibit E hereto for
such calendar year or applicable portion thereof during which such person was a
Certificateholder and (ii) such other customary information as the Trustee deems
necessary or desirable for Certificateholders to prepare their federal, state
and local income tax returns, including the amount of original issue discount
accrued on the Certificates, if applicable. The obligations of the Trustee in
the immediately preceding sentence shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code. As
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soon as practicable following the request of any Certificateholder in writing,
the Trustee shall furnish to such Certificateholder such information regarding
the Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Master Servicer and the Special Servicer shall
promptly provide to the Depositor and the Trustee such information regarding the
Mortgage Loans and the Mortgaged Properties as such party may reasonably request
and that has been furnished to, or may otherwise be in the possession of, the
Master Servicer or the Special Servicer, as the case may be.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall, subject Section 4.03(c), either (i) remit from its
own funds to the Trustee for deposit into the Distribution Account an amount
equal to the aggregate amount of P&I Advances, if any, to be made in respect of
the related Distribution Date, (ii) apply amounts held in the Collection Account
for future distribution to Certificateholders in subsequent months in discharge
of any such obligation to make P&I Advances, or (iii) make P&I Advances in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made. Any amounts held in the Collection Account for future
distribution and so used to make P&I Advances shall be appropriately reflected
in the Master Servicer's records and replaced by the Master Servicer by deposit
in the Collection Account prior to the next succeeding Master Servicer
Remittance Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and interest in respect of which
such P&I Advances were made). If, as of 3:30 p.m., New York City time, on any
P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the Officer's Certificate and other documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted on such date, then the Trustee shall
provide notice of such failure to the Master Servicer by facsimile transmission
as soon as possible, but in any event before 4:30 p.m., New York City time, on
such P&I Advance Date. If after such notice the Trustee does not receive the
full amount of such P&I Advances by 6:00 p.m., New York City time, on such P&I
Advance Date, then the Trustee shall (not later than 11:00 a.m., New York City
time, on the related Distribution Date) make, and if the Trustee fails to do so,
any Fiscal Agent shall (not later than 12:00 noon, New York City time, on the
related Distribution Date) make, the portion of such P&I Advances that was
required to be, but was not, made or remitted, as the case may be, by the Master
Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
in respect of any Distribution Date, subject to Section 4.03(c) below, shall
equal the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of any related Master Servicing
Fees and Workout Fees, due or deemed due, as the case may be, in respect of the
Mortgage Loans (including Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Mortgage Loans on their respective Due
Dates during the related Collection Period (or, in the case of the Holiday Inn
Orlando Mortgage Loan, on the related Due Date during the Collection Period next
following the related Collection Period), in each case to the extent such amount
was not paid by or on behalf of the related Borrower or otherwise collected as
of the close of business on the related Determination Date; provided that, if an
Appraisal Reduction Amount exists with respect to any Required Appraisal Loan,
then the interest portion of any P&I Advance required to be made in respect of
such Required Appraisal Loan for the related Distribution Date shall be reduced
(it being herein acknowledged that there shall be no reduction in the principal
portion of such P&I
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Advance) to equal the product of (i) the amount of the interest portion of such
P&I Advance that would otherwise be required to be made in respect of such
Required Appraisal Loan for such Distribution Date without regard to this
proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator
of which shall equal the Stated Principal Balance of such Required Appraisal
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall
be required to be made hereunder if such P&I Advance would, if made, constitute
a Nonrecoverable P&I Advance. The determination by the Master Servicer (or, if
applicable, the Trustee or any Fiscal Agent) that it has made a Nonrecoverable
P&I Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be made by such Person in its reasonable, good
faith judgment and shall be evidenced by an Officer's Certificate delivered to
the Depositor, to the Special Servicer, to the Controlling Class Representative
and, if made by the Master Servicer, to the Trustee (on or before the related
P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis
for such determination, accompanied by a copy of an Appraisal of the related
Mortgaged Property or REO Property performed within the 12 months preceding such
determination by a Qualified Appraiser, and further accompanied by any other
information, including engineers' reports, environmental surveys or similar
reports, that the Person making such determination may have obtained and that
support such determination. The Trustee and any Fiscal Agent shall be entitled
to conclusively rely on any nonrecoverability determination made by the Master
Servicer with respect to a particular P&I Advance. The Special Servicer shall
promptly furnish any party required to make P&I Advances hereunder with any
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as such party required to make P&I Advances may reasonably
request.
(d) The Master Servicer, the Trustee and any Fiscal Agent shall each be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), for so long as such P&I Advance is outstanding (or, if such P&I Advance
was made prior to the end of any grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period). Such interest with respect to any P&I
Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26,
out of any Default Charges subsequently collected on the particular Mortgage
Loan or REO Mortgage Loan as to which such P&I Advance relates; and (ii) then,
after such P&I Advance is reimbursed, but only if and to the extent that such
Default Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The Master Servicer shall reimburse itself, the Trustee or
any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby as
soon as practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection was received as of the related P&I Advance Date. The Master Servicer
shall not be entitled to Advance Interest to the extent a payment is received
but is being held by the Master Servicer in suspense.
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SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Sections 4.01(a) and
4.01(b), the Trustee shall determine the amount, if any, by which (i) the then
aggregate of the Class Principal Balances of all the Classes of Principal
Balance Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
C, Class B-9, Class B-8, Class B-7, Class B-6, Class B-5, Class B-4, Class B-3,
Class B-2, Class B-1, Class A-4, Class A-3 and Class A-2 Certificates shall be
reduced sequentially, in that order, until such excess is reduced to zero;
provided that, no such Class of Certificates shall have its Class Principal
Balance reduced unless and until the Class Principal Balance of each other Class
of Certificates, if any, listed in front of it has been reduced to zero; and
provided, further, that if after the foregoing reductions, the amount described
in clause (i) of the preceding sentence still exceeds the amount described in
clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1A and Class A-1B Certificates shall be reduced on a pro rata basis
in accordance with the relative sizes of such Class Principal Balances, until
any such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(k), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest C, REMIC II Regular Interest B-9, REMIC II Regular Interest
B-8, REMIC II Regular Interest B-7, REMIC II Regular Interest B-6, REMIC II
Regular Interest B-5, REMIC II Regular Interest B-4, REMIC II Regular Interest
B-3, REMIC II Regular Interest B-2, REMIC II Regular Interest B-1, REMIC II
Regular Interest A-4, REMIC II Regular Interest A-3 and REMIC II Regular
Interest A-2, shall be reduced sequentially, in that order, until such excess is
reduced to zero; provided that, no such REMIC II Regular Interest shall have its
Uncertificated Principal Balance reduced unless and until the Uncertificated
Principal Balance of each other REMIC II Regular Interest, if any, listed in
front of it has been reduced to zero; and provided, further, that if after the
foregoing reductions, the amount described in clause (i) of the preceding
sentence still exceeds the amount described in clause (ii) of such sentence,
then the respective Uncertificated Principal Balances of REMIC II Regular
Interest A-1A and REMIC II Regular Interest A-1B shall be reduced on a pro rata
basis in accordance with the relative sizes of such Uncertificated Principal
Balances, until any such remaining excess is reduced to zero. All such
reductions in the Uncertificated Principal Balances of the respective REMIC II
Regular Interests shall be deemed to constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(l),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to the extent
necessary to equal the Stated Principal Balance of the related Mortgage Loan or
REO Mortgage Loan, as the case may be (or, if applicable in cases involving the
substitution of multiple Replacement Mortgage Loans, the aggregate Stated
Principal Balance of each and every related
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Mortgage Loan and/or REO Mortgage Loan, as the case may be), that will be
outstanding immediately following such Distribution Date. All such reductions in
the Uncertificated Principal Balances of the respective REMIC I Regular
Interests shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Trustee receives the necessary information from the
Master Servicer and/or Special Servicer, the Trustee shall be responsible for
performing all calculations necessary in connection with the actual and deemed
distributions to be made pursuant to Section 4.01, the preparation of the
Trustee Reports pursuant to Section 4.02(a) and the actual and deemed
allocations of Realized Losses and Additional Trust Fund Expenses to be made
pursuant to Section 4.04. The Trustee shall calculate the Standard Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or otherwise verify any information provided to it by the
Master Servicer. The calculations by the Trustee contemplated by this Section
4.05 shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms attached
hereto as Exhibits A-1 through A-6; provided, however, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Class S, Class A, Class B-1,
Class B-2 and Class B-3 Certificates shall initially be held and transferred
through the book-entry facilities of the Depositary. The Class S, Class A, Class
B-1, Class B-2 and Class B-3 Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances (or, in the case of the
Class S Certificates, initial Certificate Notional Amounts) as of the Closing
Date of not less than $10,000 and any whole dollar denomination in excess
thereof. The other REMIC III Regular Interest Certificates will be issuable only
in denominations corresponding to initial Certificate Principal Balances as of
the Closing Date of not less than $100,000 and any whole dollar denomination in
excess thereof. The Class R Certificates, the Class D Certificates and the Class
E Certificates will be issuable only in denominations representing Percentage
Interests in the related Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized signatory of the Trustee shall be entitled
to all benefits under this Agreement, subject to the following sentence,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Wells Fargo Center, Sixth and Marquette, MAC#
N9303-121, Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Trustee may
appoint, by a written instrument delivered to the other parties hereto, any
other bank or trust company to act as Certificate Registrar under such
conditions as the Trustee may prescribe, provided that the Trustee shall not be
relieved of
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any of its duties or responsibilities hereunder as Certificate Registrar by
reason of such appointment. If the Trustee resigns or is removed in accordance
with the terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the Special Sub-Servicer shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
If three or more Certificateholders make a written request to the Trustee,
and such request states that such Certificateholders desire to communicate with
other Certificateholders with respect to their rights under this Agreement or
under the Certificates and is accompanied by a copy of the communication that
such requesting Certificateholders propose to transmit, then the Trustee shall,
within 30 days after the receipt of such request, afford (or cause any other
Certificate Registrar to afford) the requesting Certificateholders access during
normal business hours to, or deliver to the requesting Certificateholders a copy
of, the most recent list of Certificateholders held by the Certificate Registrar
(which list shall be current as of a date no earlier than 30 days prior to the
Trustee's receipt of such request). Every Certificateholder, by receiving such
access, acknowledges that neither the Certificate Registrar nor the Trustee will
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of any Certificateholder regardless of the source
from which such information was derived.
(b) No transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws.
If a transfer of any Non-Registered Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of any Non-Registered Certificate by
the Depositor), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit F-1A; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1B and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Master Servicer,
the Special Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
If a transfer of an interest in any Class S 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 an interest in a Class S Certificate by the Depositor or an
Affiliate of the Depositor), then the Certificate Owner desiring to effect such
transfer shall require from its prospective Transferee: (i) a certificate
substantially in the form attached either as Exhibit F-2C hereto or as Exhibit
F-2D hereto; or (ii) an Opinion of Counsel to the effect that such transfer may
be made without registration under the Securities Act.
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None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor,
DLJSC, Prudential, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Special Sub-Servicer and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
(c) No transfer of any Certificate or interest therein shall be made (A) to
any retirement plan or other employee benefit plan, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code.
Except in connection with the initial issuance of the Certificates or any
transfer of a Non-Registered Certificate by the Depositor or, in the case of a
Book-Entry Subordinate Certificate, any transfer of such Certificate to a
successor Depositary or to the applicable Certificate Owner in accordance with
Section 5.03(c), the Certificate Registrar shall refuse to register the transfer
of a Non-Registered Certificate unless it has received from the prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) a certification to the effect that the
purchase and continued holding of such Certificate by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) in the case of a Class S Certificate
that is being acquired by or on behalf of a Plan in reliance on the Underwriter
Exemptions, a certification to the effect that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y)
is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, any Sub-Servicer or any Borrower
with respect to Mortgage Loans constituting 5% of the aggregate unamortized
principal of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees a written representation that such Transferee, if a Plan, satisfies
the requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee, the Certificate
Registrar or the Trust) which otherwise establish to the reasonable satisfaction
of the Trustee that such transfer will not result in a violation of Section 406
of ERISA or Section 4975 of the Code or result in the imposition of an excise
tax under Section 4975 of
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the Code. It is hereby acknowledged that the form of certification attached
hereto as Exhibit G-1 is acceptable for purposes of the preceding sentence.
Except in connection with the initial issuance of the Certificates or any
transfer of an interest in a Class S Certificate by the Depositor or an
Affiliate of the Depositor, the Certificate Owner desiring to effect a transfer
of an interest in a Class S Certificate shall obtain from its prospective
Transferee either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
interest in such Class S Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) if such interest in such
Certificate is being acquired by or on behalf of a Plan in reliance on the
Underwriter Exemptions, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Special Sub-Servicer, any Sub-Servicer or
any Borrower with respect to Mortgage Loans constituting 5% of the aggregate
unamortized principal of all the Mortgage Loans determined as of the Closing
Date, or by any Affiliate of such Person, and (Z) agrees that it will obtain
from each of its Transferees a written representation that such Transferee, if a
Plan, satisfies the requirements of the immediately preceding clauses (ii)(X)
and (ii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(ii)(X) and (ii)(Y); or (iii) a certification of facts and an Opinion of Counsel
to the effect that such transfer will not result in a violation of Section 406
of ERISA or Section 4975 of the Code or result in the imposition of an excise
tax under Section 4975 of the Code. It is hereby acknowledged that the form of
certification attached hereto as Exhibit G-2 is acceptable for purposes of the
preceding sentence.
Each Transferee of an interest in any Class S Certificate that is a
Book-Entry Certificate or in any Book-Entry Subordinate Certificate shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and continued holding of such Certificate or interest
therein by such Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (d)(ii) below to deliver
payments to a Person other than such Person and, further, to negotiate the terms
of any mandatory disposition and to execute all instruments of Transfer and do
all other things necessary in connection with any such disposition. The rights
of each Person acquiring any Ownership Interest in a Class R Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in
its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar
shall require delivery to it,
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and shall not register the Transfer of any Class R Certificate
until its receipt, of an affidavit and agreement substantially in
the form attached hereto as Exhibit H-1 (a "Transfer Affidavit
and Agreement"), from the proposed Transferee, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Class R Certificate it will
endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest
in a Class R Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom
such Person attempts to transfer its Ownership Interest in such
Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the
Certificate Registrar and the Trustee a certificate substantially
in the form attached hereto as Exhibit H-2 stating that, among
other things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing such Ownership Interest, agrees to
give the Trustee written notice that it is a "pass-through
interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring
an Ownership Interest in a Class R Certificate if it is, or is
holding an Ownership Interest in a Class R Certificate on behalf
of, a "pass-through interest holder".
(ii) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Class R Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof retroactive
to the date of registration of such Transfer of such Class R Certificate.
None of the Depositor, the Trustee or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof or
for taking any other action with respect to such Holder under the
provisions of this Agreement.
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If any purported Transferee shall become a Holder of a Class R Certificate
in violation of the restrictions in this Section 5.02(d), then, to the extent
that retroactive restoration of the rights of the preceding Holder of such Class
R Certificate as described in the preceding paragraph of this clause (d)(ii)
shall be invalid, illegal or unenforceable, the Trustee shall have the right,
but not the obligation, to cause the transfer of such Class R Certificate to a
Permitted Transferee selected by the Trustee on such terms as the Trustee may
choose, and the Trustee shall not be liable to any Person having an Ownership
Interest in such Class R Certificate or any other Person as a result of its
exercise of such discretion. Such purported Transferee shall promptly endorse
and deliver such Class R Certificate in accordance with the instructions of the
Trustee. Such Permitted Transferee may be the Trustee itself or any Affiliate of
the Trustee.
(iii) The Trustee shall make available to the IRS and to those Persons
specified by the REMIC Provisions all information furnished to it by the other
parties hereto necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Class R Certificate to any Person who is
a Disqualified Organization, including the information described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" the REMIC I Residual Interest, the REMIC II Residual
Interest and the REMIC III Residual Interest and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Class R Certificate having as among its
record holders at any time any Person which is a Disqualified Organization, and
each of the other parties hereto shall furnish to the Trustee all information in
its possession necessary for the Trustee to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the reasonable
compensation of the Trustee for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this clause
(iv) may be modified, added to or eliminated, provided that there shall have
been delivered to the Trustee the following:
(A) written confirmation from each Rating Agency to the effect that
the modification of, addition to or elimination of such
provisions will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trustee or the Trust), to
the effect that doing so will not (1) cause any REMIC Pool to
cease to qualify as a REMIC or be subject to an entity-level tax
caused by the Transfer of any Class R Certificate to a Person
which is not a Permitted Transferee or (2) cause a Person other
than the prospective Transferee to be subject to a REMIC-related
tax caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee.
(e) The Trust has not been registered as an investment company under the
Investment Company Act. Accordingly, no transfer of any Class B-4, Class B-5,
Class B-6, Class B-7, Class B-8, Class B-9, Class C or Class D Certificate shall
be made to any Person other than an Institutional
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Accredited Investor or a Qualified Institutional Buyer, and no transfer of any
Class E or Class R Certificate shall be made to any Person other than a
Qualified Institutional Buyer. If a transfer of any such Certificate is to be
made, then the Trustee shall require, in order to assure compliance with the
foregoing, that the prospective transferee of such Certificate (or the
transferor on its behalf) certify in writing that the prospective transferee is
a Qualified Institutional Buyer or, alternatively, but solely in the case of a
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class C or
Class D Certificate, an Institutional Accredited Investor.
(f) If a Person is acquiring any Subordinate, Class D or Class E
Certificate as a fiduciary or agent for one or more accounts, such Person shall
be required to deliver to the Certificate Registrar a certification to the
effect that, and such other evidence as may be reasonably required by the
Trustee to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account as set forth in Subsections (b), (c), (d)
and/or (e), as appropriate, of this Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(i) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(j) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(k) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(l) The Certificate Registrar or the Trustee shall provide to each of the
other parties hereto, upon reasonable written request and at the expense of the
requesting party, an updated copy of the Certificate Register.
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SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1, Class B-2 and Class B-3 Certificates
shall, in the case of each Class thereof, initially be issued as one or more
Certificates registered in the name of the Depositary or its nominee and, except
as provided in Section 5.03(c), transfer of such Certificates may not be
registered by the Certificate Registrar unless such transfer is to a successor
Depositary that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and,
subject to Section 5.02(c), transfer their respective Ownership Interests in and
to such Certificates through the book-entry facilities of the Depositary and,
except as provided in Section 5.03(c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depositary Participant or indirect
participating brokerage firm representing each such Certificate Owner. Each
Depositary Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of indirect
participating brokerage firms for which it acts as agent in accordance with the
Depositary's normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent and the Certificate Registrar may
for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depositary as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depositary Participants and indirect participating brokerage firms representing
such Certificate Owners. Multiple requests and directions from, and votes of,
the Depositary as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depositary of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depositary is no longer willing or able to
discharge properly its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depositary with respect to any Class of Book-Entry Certificates (or any
portion of any Class thereof), the Certificate Registrar shall notify all
affected Certificate Owners, through the Depositary, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of any Class of Book-Entry Certificates (or any portion of any Class
thereof) by the Depositary, accompanied by registration instructions from the
Depositary for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Special Sub-Servicer, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
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and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the reasonable fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor, the
Master Servicer, the Special Servicer, the Special Sub-Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar and any agent of any of them may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and for all other purposes whatsoever, and none of the Depositor, the
Master Servicer, the Special Servicer, the Special Sub-Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its acquisition of
an Ownership Interest in the Book-Entry Certificates to agree to comply with the
transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certificate of such Person which shall be
substantially in the form of paragraph 1 of Exhibit L-1 hereto (or such other
form as shall be reasonably acceptable to the Trustee) and shall specify the
Class and Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of the Book-Entry Certificate beneficially owned; provided,
however, that the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership Interest in a Book-Entry Certificate in
violation of Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depositary, Depositary Participants and/or indirect participating
brokerage firms for which Depositary Participants act as agents, with respect to
the identity of a Certificate Owner. The Trustee shall exercise its reasonable
discretion in making any determination under this Section 5.06(b)
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and shall afford any Person providing information with respect to its beneficial
ownership of any Book-Entry Certificate an opportunity to resolve any
discrepancies between the information provided and any other information
available to the Trustee.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE SPECIAL SUB-SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer, the Special
Servicer and the Special Sub-Servicer.
The Depositor, the Master Servicer, the Special Servicer and the Special
Sub-Servicer shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the Special
Sub-Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the Special
Sub-Servicer.
(a) Subject to Section 6.02(b), each of the Depositor, the Master Servicer,
the Special Servicer and the Special Sub-Servicer shall each keep in full effect
its existence, rights and franchises as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction wherein it was organized, and each shall obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicer, the Special Servicer and
the Special Sub-Servicer may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets to any Person, in which case,
any Person resulting from any merger or consolidation to which the Depositor,
the Master Servicer, the Special Servicer or the Special Sub-Servicer shall be a
party, or any Person succeeding to the business of the Depositor, the Master
Servicer, the Special Servicer or the Special Sub-Servicer, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
Special Sub-Servicer, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master
Servicer, the Special Servicer or the Special Sub-Servicer unless (i) such
succession will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by each Rating
Agency) and (ii) such successor or Surviving Person makes the applicable
representations and warranties set forth in Section 2.05 (in the case of a
successor or surviving Person to the Master Servicer), Section 2.06 (in the case
of a successor or surviving Person to the Special Servicer) or Section 2.08 (in
the case of a successor or surviving Person to the Special Sub-Servicer), as
applicable.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and the Special Sub-Servicer.
None of the Depositor, the Master Servicer, the Special Servicer or the
Special Sub-Servicer shall be under any liability to the Trust, the Trustee or
the Certificateholders for any action taken or not taken in good faith pursuant
to this Agreement or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer or
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the Special Sub-Servicer against any liability to the Trust, the Trustee or the
Certificateholders for the breach of a representation or warranty made by such
party herein, or against any expense or liability specifically required to be
borne by such party without right of reimbursement pursuant to the terms hereof,
or against any liability which would otherwise be imposed by reason of
misfeasance, bad faith or negligence in the performance of, or reckless
disregard of, such party's obligations or duties hereunder. The Depositor, the
Master Servicer, the Special Servicer, the Special Sub-Servicer and any
director, member, manager, officer, employee or agent of any such party may rely
in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer and any director, member, manager, officer, employee or agent of
any such party, shall be indemnified and held harmless by the Trust out of the
Collection Account against any loss, liability, cost or expense (including
reasonable legal expenses) incurred in connection with any legal action relating
to this Agreement or the Certificates, other than any loss, liability, cost or
expense: (i) specifically required to be borne thereby pursuant to the terms
hereof or otherwise incidental to the performance of obligations and duties
hereunder, including, in the case of the Master Servicer, the Special Servicer
or the Special Sub-Servicer, the prosecution of an enforcement action in respect
of any specific Mortgage Loan or Mortgage Loans (except as any such loss,
liability or expense shall be otherwise reimbursable pursuant to this
Agreement); or (ii) incurred in connection with any legal action against such
party resulting from any breach of a representation or warranty made herein, any
misfeasance, bad faith or negligence in the performance of, or reckless
disregard of, obligations or duties hereunder or any willful or negligent
violation of applicable law. None of the Depositor, the Master Servicer, the
Special Servicer or the Special Sub-Servicer shall be under any obligation to
appear in, prosecute or defend any legal action unless such action is related to
its respective duties under this Agreement and, except in the case of a legal
action the costs of which it is specifically required hereunder to bear, in its
opinion does not involve it in any ultimate expense or liability for which it
would not be reimbursed hereunder; provided, however, that the Depositor, the
Master Servicer, the Special Servicer or the Special Sub-Servicer may in its
discretion undertake any such action which it may reasonably deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust, and the Depositor, the Master Servicer and the Special Servicer shall be
entitled to be reimbursed therefor from the Collection Account as provided in
Section 3.05(a).
In addition, none of the Master Servicer, the Special Servicer or the
Special Sub-Servicer shall have any liability with respect to, and each shall be
entitled to rely as to the truth of the statements made and the correctness of
the opinions expressed therein on, any certificates or opinions furnished to the
Master Servicer, the Special Servicer or the Special Sub-Servicer, as the case
may be, and conforming to the requirements of this Agreement. Each of the Master
Servicer, the Special Servicer and the Special Sub-Servicer may rely in good
faith on information provided to it by the other (unless the provider and the
recipient of such information are the same Person or Affiliates) and by the
Borrowers, and will have no duty to investigate or verify the accuracy thereof.
SECTION 6.04. Resignation of Master Servicer, Special Servicer and Special
Sub-Servicer.
(a) The Master Servicer and the Special Servicer may each resign from the
obligations and duties hereby imposed on it, upon a determination that its
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other
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activities carried on by it (the other activities of the Master Servicer or the
Special Servicer, as the case may be, so causing such a conflict being of a type
and nature carried on by the Master Servicer or the Special Servicer, as the
case may be, at the date of this Agreement). Any such determination requiring
the resignation of the Master Servicer or the Special Servicer, as applicable,
shall be evidenced by an Opinion of Counsel to such effect which shall be
delivered to the Trustee. Unless applicable law requires the Master Servicer's
or the Special Servicer's (as the case may be) resignation to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior sentence
so states, no such resignation shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 6.06 or Section 7.02 hereof; provided
that, if no successor master servicer or special servicer, as applicable, shall
have been so appointed and have accepted appointment within 90 days after the
Master Servicer or the Special Servicer, as the case may be, has given notice of
such resignation, the resigning Master Servicer or Special Servicer, as
applicable, may petition any court of competent jurisdiction for the appointment
of a successor master servicer or special servicer, as applicable.
(b) In addition, the Master Servicer and the Special Servicer shall each
have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
reasonably acceptable to the Depositor and the Trustee has been found, (ii) each
of the Rating Agencies confirms to the Trustee in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation.
(c) Neither the Master Servicer nor the Special Servicer shall be permitted
to resign except as contemplated in subsections (a) and (b) of this Section
6.04. Consistent with the foregoing, none of the Master Servicer or the Special
Servicer shall (except in connection with any resignation thereby permitted
above in this Section 6.04 or as otherwise expressly provided herein, including
the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02) assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or delegate to, subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by it
hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer or the Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to the Master Servicer or the Special
Servicer as the case may be, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor, except to the extent
provided in Section 3.11(c).
(d) Any resignation of the Special Sub-Servicer under the Special
Sub-Servicing Agreement shall be an effective resignation of the Special
Sub-Servicer hereunder. The Special Servicer shall promptly notify the other
parties hereto of any such resignation of the Special Sub-Servicer.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the Special
Sub-Servicer.
The Master Servicer, the Special Servicer and the Special Sub-Servicer
shall each afford the Depositor, the Trustee, the Controlling Class
Representative and each Rating Agency, upon reasonable notice, during normal
business hours access to all records maintained by it in respect of its rights
and obligations hereunder and access to such of its officers as are responsible
for such obligations. Upon reasonable request, the Master Servicer, the Special
Servicer and the Special Sub-Servicer shall each furnish the Depositor and the
Trustee with its most recent publicly available annual audited
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financial statements (or, if not available, the most recent publicly available
audited annual financial statements of its corporate parent) and such other
information as is publicly available regarding its business, affairs, property
and condition, financial or otherwise; provided that none of the Depositor or
the Trustee may disclose the contents of such financial statements or other
information to non-affiliated third parties (other than accountants, attorneys,
financial advisors and other representatives retained to help it evaluate such
financial statements or other information), unless it is required to do so under
applicable securities laws or is otherwise compelled to do so as a matter of
law. The Master Servicer, the Special Servicer and the Special Sub-Servicer may
each affix to any such information described in this Section 6.05 provided by it
any disclaimer it deems appropriate in its reasonable discretion. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer,
the Special Servicer and the Special Sub-Servicer hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Master Servicer, the Special Servicer or the Special Sub-Servicer
hereunder or exercise the rights of the Master Servicer, the Special Servicer or
the Special Sub-Servicer hereunder; provided, however, that none of the Master
Servicer, the Special Servicer or the Special Sub-Servicer shall be relieved of
any of its obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Master Servicer, the Special Servicer or
the Special Sub-Servicer and is not obligated to supervise the performance of
the Master Servicer, the Special Servicer or the Special Sub-Servicer under this
Agreement or otherwise.
SECTION 6.06. Master Servicer, Special Servicer or Special Sub-Servicer as
Owner of a Certificate.
The Master Servicer, the Special Servicer, the Special Sub-Servicer or any
Affiliate of any of them may become the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate with
(except as otherwise set forth in the definition of "Certificateholder") the
same rights it would have if it were not the Master Servicer, the Special
Servicer, the Special Sub-Servicer or an Affiliate of any of them. If, at any
time during which the Master Servicer or the Special Servicer or an Affiliate of
the Master Servicer or the Special Servicer is the Holder of (or, in the case of
a Book-Entry Certificate, Certificate Owner with respect to) any Certificate,
the Master Servicer or the Special Servicer proposes to take any action
(including for this purpose, omitting to take a particular action) that is not
expressly prohibited by the terms hereof and would not, in the Master Servicer's
or the Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Master Servicer or the
Special Servicer may (but need not) seek the approval of the Certificateholders
to such action by delivering to the Trustee a written notice that (a) states
that it is delivered pursuant to this Section 6.06, (b) identifies the
Percentage Interest in each Class of Certificates beneficially owned by the
Master Servicer or the Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that the Master
Servicer or the Special Servicer, as the case may be, proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with a request for approval by the
Certificateholders of each such proposed action. If at any time
Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be
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deemed to comply with the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Trustee incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the Collection
Account any amount required to be so deposited under this Agreement, which
failure continues unremedied for three Business Days following the date on
which such deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or the Collection Account, or to remit to the Master Servicer for
deposit into the Collection Account, any amount required to be so deposited
or remitted under this Agreement, which failure continues unremedied for
three Business Days following the date on which such deposit or remittance,
as the case may be, was first required to be made;
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date or, on any Master
Servicer Remittance Date, the full amount of the Master Servicer Remittance
Amount and any Compensating Interest Payment required to be remitted on
such date, which failure continues unremedied until 6:00 p.m. (New York
City time) on such P&I Advance Date or Master Servicer Remittance Date, as
the case may be; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice shall have been given to the Master Servicer by the Trustee as
provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request the
Master Servicer to make) any Servicing Advance required to be made by it
hereunder, which Servicing Advance remains unmade for a period of three
Business Days following the date on which notice has been given to the
Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such breach
which is not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure period
of 30 days to effect such cure so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such failure
within the initial 30-day period and has provided the Trustee
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with an Officer's Certificate certifying that it has diligently pursued,
and is continuing to pursue, a full cure; or
(vii) any breach on the part of the Master Servicer or the Special Servicer
of any representation or warranty contained in this Agreement that materially
and adversely affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 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 or the Special Servicer, as the case may be, by any other party
hereto or to the Master Servicer or the Special Servicer, as the case may be,
with a copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights, provided, however, that with respect to
any such breach which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an additional
cure period of 30 days to effect such cure so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such breach within
the initial 30-day period and has provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is continuing to
pursue, a full cure; or
(viii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer or the Special
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 30 days, provided, however, that with respect to any
such decree or order which cannot be discharged or stayed within such 30-day
period, the Master Servicer or the Special Servicer, as the case may be, shall
have an additional period of 30 days to effect such discharge or stay so long as
the Master Servicer or the Special Servicer, as the case may be, has commenced
proceedings to discharge or stay such decree or order within the initial 30-day
period and has provided the Trustee with an Officer's Certificate certifying
that it has diligently pursued, and is continuing to pursue, such discharge or
stay; or
(ix) the Master Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to all
or substantially all of its property; or
(x) the Master Servicer or the Special Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xi) the Trustee shall have received written notice from either Rating
Agency to the effect that the continuation of the Master Servicer or the Special
Servicer in such capacity (A) would result in a qualification, downgrade or
withdrawal of one or more ratings assigned by such Rating Agency to the
Certificates or (B) would result or has resulted in any rating assigned by such
Rating Agency to the Certificates otherwise becoming the subject of a "negative"
credit
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watch, and in any event such notice is not rescinded within 30 days (or such
longer period as would not, as confirmed by such Rating Agency in writing,
result in a qualification, downgrade or withdrawal of one or more ratings
assigned by such Rating Agency to the Certificates) following the delivery of
such notice;
(xii) one or more ratings assigned by either Rating Agency to the
Certificates shall have been qualified, downgraded or withdrawn as a result of
the Master Servicer or Special Servicer, as the case may be, acting in such
capacity; or
(xiii) either (A) the Master Servicer shall cease to possess the
then-current minimum acceptable rating from Fitch for master servicers of CMBS
loan pools, or the Special Servicer shall cease to possess the then-current
minimum rating from Fitch for special servicers of CMBS loan pools or (B)
Moody's places the rating of any Class of Certificates on "watchlist" status for
possible ratings downgrade or withdrawal citing servicing concerns with respect
to the Master Servicer or the Special Servicer as the sole or a contributory
factor in such rating action and Moody's has not removed such rating from
"watchlist" status within 60 days thereafter or stated that servicing is no
longer a contributory factor.
When a single entity acts as Master Servicer and Special Servicer, or in
any two of the foregoing capacities, an Event of Default (other than an event
described in clauses (xi), (xii) and (xiii) above) in one capacity shall
constitute an Event of Default in both such capacities.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of the Holders of
Certificates entitled to not less than 25% of the Voting Rights, the Trustee
shall (subject to applicable bankruptcy or insolvency law in the case of clauses
(viii) through (x) of Section 7.01(a)), terminate, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto), all of
the rights and obligations (accruing from and after such notice) of the
Defaulting Party under this Agreement and in and to the Trust Fund (other than
as a Holder of any Certificate). From and after the receipt by the Defaulting
Party of such written notice, all authority and power of the Defaulting Party
under this Agreement, whether with respect to the Certificates (other than as a
Holder of any Certificate) or the Mortgage Loans or otherwise, shall pass to and
be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Each of the Master Servicer and the Special Servicer agrees that, if
it is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested
thereby to enable the Trustee to assume the Master Servicer's or Special
Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of the Master Servicer's
or Special Servicer's, as the case may be, responsibilities and rights
hereunder, including the transfer within two Business Days to the Trustee for
administration by it of all cash amounts that at the time are or should have
been credited by the Master Servicer to the Collection Account, the Distribution
Account or any Servicing Account or Reserve Account held by it (if it is the
Defaulting Party) or by the Special
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Servicer to the REO Account, the Collection Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property (provided, however, that the Master Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be obligated to pay and entitled to receive all amounts accrued or owing by or
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, including Workout Fees (as and to the
extent provided in Section 3.11(c)), and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Any costs or expenses (including
those of any other party hereto) incurred in connection with any actions to be
taken by the Master Servicer or Special Servicer pursuant to this paragraph
shall be borne by the Master Servicer or Special Servicer, as the case may be
(and, in the case of the Trustee's costs and expenses, if not paid within a
reasonable time, shall be borne by the Trust out of the Collection Account).
(c) Notwithstanding Section 7.01(b), if the Defaulting Party is the initial
Master Servicer, then, subsequent to the date of the related Event of Default
and on or before the effective date of any termination pursuant to Section
7.01(b), the initial Master Servicer shall (i) procure PMLS Limited Partnership
to act as Master Servicer (if PMLS Limited Partnership meets the conditions of
the proviso below and agrees to pay the Master Servicer a then current fair
market price for the servicing rights of the Master Servicer under this
Agreement, which shall be determined by any other bona fide and binding (subject
to reasonable and customary contingencies) third-party offers for such rights
received by or affirmed to the Master Servicer in writing from Persons
reasonably likely to satisfy the conditions of the proviso below) or (ii) if
PMLS Limited Partnership is unwilling to be appointed, does not agree to pay the
amount described in the immediately preceding clause (i) or does not meet the
conditions of the proviso below, procure a qualified Person that is willing to
act as the successor Master Servicer, and the Trustee shall thereafter appoint
such Person to act as the successor Master Servicer; provided that (i) such
Person is reasonably acceptable to the Trustee, (ii) such Person accepts such
appointment, (iii) each Rating Agency confirms in writing that such Person's
appointment as Master Servicer will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, and (iv) the initial or successor
Master Servicer pays all costs and expenses in connection with such transfer.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer resigns
pursuant to Section 6.04(a) or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, subject to Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Master
Servicer or the Special Servicer, as the case may be, by the terms and
provisions hereof, including, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make Advances; provided,
however, that any failure to perform such duties or responsibilities caused by
the Master Servicer's or the Special Servicer's, as the case may be, failure to
cooperate or to provide information or monies as required by Section 7.01 shall
not be considered a default by the Trustee hereunder. Neither the Trustee nor
any other successor shall be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee or any other successor be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to all fees
and other compensation which the resigning or terminated party would have been
entitled to for future services rendered if the resigning or terminated party
had continued to act
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hereunder. Notwithstanding the above, if it is unwilling to so act, the Trustee
may (and, if it is unable to so act, or if the Trustee is not approved as an
acceptable master servicer or special servicer, as the case may be, by each
Rating Agency, or if the Holders of Certificates entitled to a majority of all
the Voting Rights so request in writing, the Trustee shall), subject to Section
7.01(c), as applicable, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established and qualified institution as the
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer or the Special Servicer, as the case may
be, hereunder; provided, however, that such appointment does not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency). No appointment of a
successor to the Master Servicer or the Special Servicer hereunder shall be
effective until the assumption by such successor of all its responsibilities,
duties and liabilities hereunder, and pending such appointment and assumption,
the Trustee shall act in such capacity as hereinabove provided. In connection
with any such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on the Mortgage Loans or
otherwise as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the resigning or terminated
party hereunder. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01, any appointment of a successor to the Master
Servicer or the Special Servicer pursuant to Section 6.02, 6.04, 7.01(c) or 7.02
or the effectiveness of any designation of a new Special Servicer pursuant to
Section 3.25, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, that an Event of Default
under clause (i), clause (ii), clause (iii), clause (xi), clause (xii) or clause
(xiii) of Section 7.01(a) may be waived only by all of the Certificateholders of
the affected Classes. Upon any such waiver of an Event of Default, and payment
to the Trustee of all reasonable costs and expenses incurred by the Trustee in
connection with such default prior to its waiver (which costs shall be paid by
the party requesting such waiver), such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the
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Depositor or any Affiliate of the Depositor shall be entitled to the same Voting
Rights with respect to the matters described above as they would if registered
in the name of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust, to take all
actions now or hereafter existing at law, in equity or by statute to enforce its
rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
SECTION 7.06. Termination of Special Sub-Servicer.
Upon the termination of the Special Sub-Servicer under the
Special Sub-Servicing Agreement, the Special Sub-Servicer shall be terminated in
that capacity hereunder. The Special Servicer shall promptly notify the other
parties hereto of any such termination of the Special Sub-Servicer.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), the Trustee shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible or liable
for the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Master Servicer, the Special Servicer, the Special Sub-Servicer, any actual or
prospective Certificateholder or Certificate Owner or either Rating Agency, and
accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement.
(ii) The Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% (or,
as to any particular matter, any higher percentage as may be specifically
provided for hereunder) of the Voting Rights relating to the time, method
and place
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of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement.
(iv) The Trustee shall not be required to take action with respect to,
or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xi) or Section
7.01(a)(xii) or the Master Servicer's failure to deliver any monies,
including P&I Advances, or to provide any report, certificate or statement,
to the Trustee when required pursuant to this Agreement) unless a
Responsible Officer of the Trustee shall have received written notice or
otherwise have actual knowledge thereof. Otherwise, the Trustee may
conclusively assume that there is no such default or Event of Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty, except as expressly provided in Section 2.01(c) or Section 2.01(e) or
in its capacity as successor Master Servicer or successor Special Servicer,
(A) to cause any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to cause the maintenance of
any such recording or filing or depositing or to any rerecording, refiling
or redepositing of any thereof, (B) to cause the maintenance of any
insurance, and (C) to confirm or verify the truth, accuracy or contents of
any reports or certificates of the Master Servicer, the Special Servicer,
the Special Sub-Servicer, any actual or prospective or any
Certificateholder or Certificate Owner or either Rating Agency, delivered
to the Trustee pursuant to this Agreement reasonably believed by the
Trustee to be genuine and without error and to have been signed or
presented by the proper party or parties.
(vi) For as long as the Person that serves as Trustee hereunder also
serves as a Custodian or as Certificate Registrar, the protections,
immunities and indemnities afforded to the Trustee hereunder shall also be
afforded to such Person in its capacity as Custodian and/or Certificate
Registrar, as the case may be.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without error
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, unless (in the Trustee's
reasonable opinion) such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall not
be
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required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
waived or cured, to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(iv) neither the Trustee nor any Fiscal Agent appointed thereby shall
be personally liable for any action reasonably taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require a reasonable indemnity against such
expense or liability as a condition to taking any such action;
(vi) except as contemplated by Section 8.06 and/or Section 8.14, the
Trustee shall not be required to give any bond or surety in respect of the
execution of the trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in it
by this Agreement or perform any of its duties hereunder either directly or
by or through agents or attorneys-in-fact, provided that the use of agents
or attorneys-in-fact shall not be deemed to relieve the Trustee of any of
its duties and obligations hereunder (except as expressly set forth
herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby
shall be responsible for any act or omission of the Master Servicer or the
Special Servicer (unless the Trustee is acting as Master Servicer or
Special Servicer, as the case may be) or of the Depositor or the Special
Sub-Servicer.
(ix) neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s)
and/or Opinions of Counsel described in said Article applicable with
respect to changes in registration or record ownership of Certificates in
the Certificate Register and to examine the same to determine substantial
compliance with the express requirements of this Agreement; and the Trustee
and Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depositary or
between or among Depositary Participants or beneficial owners of the
Certificates, made in violation of applicable restrictions except for its
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failure to perform its express duties in connection with changes in
registration or record ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
statements attributed to, and the representations and warranties of, the Trustee
and/or any Fiscal Agent in Article II, and the signature of the Trustee set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer or the Special Servicer (in each
case, unless the Trustee is acting in such capacity). Neither the Trustee nor
any Fiscal Agent shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee or
such Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as Master Servicer or Special
Servicer and the Master Servicer or Special Servicer, as the case may be, would
be so responsible hereunder. The Trustee shall not be required to record this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal Agent or
any Affiliate of either of them may become the owner or pledgee of Certificates
with (except as otherwise provided in the definition of "Certificateholder") the
same rights it would have if it were not the Trustee, such Fiscal Agent or an
Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee and Fiscal Agent.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall accrue during each calendar month, commencing with November
2000, at the Trustee's Fee Rate on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan immediately
following the Distribution Date in such calendar month (or, in the case of
November 2000, on a principal amount equal to the Cut-off Date Principal Balance
of the particular Mortgage Loan), whether or not interest is actually collected
on each
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Mortgage Loan and REO Mortgage Loan. With respect to each Mortgage Loan and REO
Mortgage Loan, the Trustee's Fee shall accrue from time to time on the same
Interest Accrual Basis as is applicable to such Mortgage Loan or REO Mortgage
Loan. The Trustee's Fees (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) shall constitute
the Trustee's sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the Trustee
shall be entitled to be indemnified and held harmless out of Trust Fund for and
against any loss, liability, claim or expense (including costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, this
Agreement, the Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Master Servicer or Special
Servicer, as the case may be) or any act or omission of the Trustee relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder, if (but only if) such loss, liability, claim or expense constitutes
an "unanticipated expense" within the meaning of Treasury regulation Section
1.860G-1(b)(3)(ii); provided, however, that neither the Trustee nor any of the
other above specified Persons shall be entitled to indemnification pursuant to
this Section 8.05(b) for (1) allocable overhead, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (2) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (3)
any loss, liability, claim or expense incurred by reason of any breach on the
part of the Trustee of any of its representations, warranties or covenants
contained herein or any willful misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, the Trustee's obligations and duties
hereunder.
(c) Each of the Master Servicer and the Special Servicer shall indemnify
the Trustee and any Fiscal Agent for and hold each of them harmless against any
loss, liability, claim or expense that is a result of the Master Servicer's or
the Special Servicer's, as the case may be, negligent acts or omissions in
connection with this Agreement, including the negligent use by the Master
Servicer or the Special Servicer, as the case may be, of any powers of attorney
delivered to it by the Trustee pursuant to the provisions hereof and the
Mortgage Loans serviced by the Master Servicer or the Special Servicer, as the
case may be; provided, however, that, if the Trustee has been reimbursed for
such loss, liability, claim or expense pursuant to Section 8.05(b), or any
Fiscal Agent has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.13, then the indemnity in favor of such Person provided
for in this Section 8.05(c) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall indemnify the Master
Servicer and the Special Servicer for and hold each of them harmless against any
loss, liability, claim or expense that is a result of the Trustee's or such
Fiscal Agent's, as the case may be, negligent acts or omissions in connection
with this Agreement; provided, however, that if the Master Servicer or the
Special Servicer has been reimbursed for such loss, liability, claim or expense
pursuant to Section 6.03, then the indemnity in favor of such Person provided
for in this Section 8.05(d) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this Agreement or
the resignation or removal of the Trustee, any Fiscal Agent, the Master Servicer
or the Special Servicer as regards rights and obligations prior to such
termination, resignation or removal.
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SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank, trust
company or association organized and doing business under the laws of the United
States of America or any State thereof or the District of Columbia, authorized
under such laws to exercise trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation, bank, trust company or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
bank, trust company or association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
addition, the Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act. Furthermore, the Trustee shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, as confirmed in writing to the Trustee and the Depositor
by such Rating Agency); provided that the Trustee shall not cease to be eligible
to serve as such based on a failure to satisfy such rating requirements so long
as either: (i) the Trustee maintains a long-term unsecured debt rating of no
less than "Baa2" from Moody's and "BBB" from Fitch (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in writing to the
Trustee and the Depositor by such Rating Agency) and a Fiscal Agent meeting the
requirements of Section 8.13 has been appointed by the Trustee and is then
currently serving in such capacity; or (ii) the Trustee maintains a long-term
unsecured debt rating of no less than "A1" from Moody's and "A+" from Fitch (or,
in the case of either Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates, as
confirmed in writing to the Trustee and the Depositor by such Rating Agency) and
an Advance Security Arrangement meeting the requirements of Section 8.14 has
been established by the Trustee and is then currently being maintained. In case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. The corporation, bank,
trust company or association serving as Trustee may have normal banking and
trust relationships with the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Special Sub-Servicer and their respective
Affiliates; provided, however, that none of (i) the Depositor, (ii) any Person
involved in the organization or operation of the Depositor or the Trust, (iii)
any Mortgage Loan Seller or (iv) any Affiliate of any of them, may be the
Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Master
Servicer, the Special Servicer, the Special Sub-Servicer and all the
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee meeting the eligibility requirements
of Section 8.06 by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten Business Days, the Master
Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the other parties hereto and to the
Certificateholders by the Depositor (or the Master Servicer, as the case may
be).
(c) The Holders of Certificates entitled to at least a majority of the
Voting Rights may (or, if such removal is in connection with the Trustee's and
any Fiscal Agent's failure to make any required Advance, 25% of the Voting
Rights) at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor (with copies to the Master Servicer, the
Special Servicer and the Special Sub-Servicer), one complete set to the Trustee
so removed and one complete set to the successor so appointed. All expenses
incurred by the Trustee in connection with its transfer of the Mortgages Files
to a successor trustee following the removal of the Trustee without cause
pursuant to this Section 8.07(c), shall be reimbursed to the removed Trustee
within 30 days of demand therefor, such reimbursement to be made by the
Certificateholders that terminated the Trustee. A copy of such instrument shall
be delivered to the other parties hereto and to the remaining Certificateholders
by the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the successor trustee
nor any Fiscal Agent appointed by it has a long-term unsecured debt rating of at
least "Aa3" from Moody's and "AA" from Fitch, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer and its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer, the Special Sub-Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and
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certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, such successor trustee shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default in respect of the Master
Servicer shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06, and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
when acting as Master Servicer or Special Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each
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of them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article VIII. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Every such instrument shall be
filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at the
Trustee's own expense one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee; provided that if the Custodian is an
Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
Each Custodian shall be a depositary institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall not be the Depositor, any Mortgage Loan
Seller or any Affiliate of the Depositor or any Mortgage Loan Seller, and shall
have in place a fidelity bond and errors and omissions policy, each in such form
and amount as is customarily required of custodians acting on behalf of Freddie
Mac or Fannie Mae. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, the Controlling Class Representative
and each Rating Agency and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any documentation regarding
the Mortgage Loans or the other assets of the Trust Fund that are in its
possession or within its control. Such access shall be afforded without charge
but only upon reasonable prior written request and during normal business hours
at the offices of the Trustee designated by it.
(b) The Trustee shall maintain at its offices and, upon reasonable prior
written request and during normal business hours, shall make available for
review by the Depositor, the Underwriters, the Rating
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Agencies, the Controlling Class Representative and, subject to the succeeding
paragraph, any Certificateholder, Certificate Owner or Person identified to the
Trustee as a prospective Transferee of a Certificate or an interest therein,
originals and/or copies of the following items (to the extent such items were
prepared by or delivered to the Trustee): (i) the Prospectus, the Memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to
the Trustee since the Closing Date and any amendments and exhibits hereto or
thereto; (iii) all Trustee Reports and any files and reports comprising the CMSA
Investor Reporting Package actually delivered or otherwise made available to
Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all
Annual Performance Certifications delivered by the Master Servicer and the
Special Servicer, respectively, to the Trustee since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by the Master Servicer and
the Special Servicer, respectively, to the Trustee since the Closing Date; (vi)
the most recent inspection report prepared by the Master Servicer or the Special
Servicer and delivered to the Trustee in respect of each Mortgaged Property
pursuant to Section 3.12(a) or this Section 8.12(b); (vii) the most recent
quarterly and annual operating statement and rent roll of each related Mortgaged
Property and financial statements of the related Borrower collected by the
Master Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.12(b) or this Section 8.12(b); (viii) any and all notices and reports
delivered to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that neither of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was satisfied; (ix) each of the Mortgage Files, including any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into or consented to by the Master Servicer or the Special Servicer and
delivered to the Trustee pursuant to Section 3.20; (x) the most recent Appraisal
for each Mortgage Loan and REO Property that has been delivered to the Trustee
(all Appraisals of Mortgaged Properties and/or REO Properties shall be delivered
to the Trustee by the Master Servicer or Special Servicer, as applicable,
promptly following their having been obtained or formulated); (xi) any and all
Officer's Certificates and other evidence delivered to or by the Trustee to
support its, the Master Servicer's, the Special Servicer's or any Fiscal
Agent's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance; (xii) a current report from the Trustee
listing all outstanding exceptions to the Mortgage File review conducted
pursuant to Section 2.02 and (xiii) any other information that may be necessary
to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the
Securities Act. The Trustee shall provide copies of any and all of the foregoing
items upon request of any of the parties set forth in the previous sentence;
however, except in the case of the Rating Agencies, the Trustee shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies. If necessary, the Trustee shall request
from the Master Servicer, and within a reasonable period following its receipt
of such request, and the Master Servicer shall deliver, copies of the items
listed in clauses (vi) and (vii) above to the Trustee.
In connection with providing access to or copies of the items described in
the preceding paragraph pursuant to this Section 8.12(b), the Trustee shall
require: (a) in the case of Certificate Owners, a written confirmation executed
by the requesting Person substantially in the form of Exhibit L-1 hereto (or
such other form as may be reasonably acceptable to the Trustee) generally to the
effect that such Person is a beneficial holder of Book-Entry Certificates and,
subject to the last sentence of this paragraph, will keep such information
confidential, except that such Certificate Owner may provide such information to
its auditors, legal counsel and regulators and to any other Person that holds or
is contemplating the purchase of any Certificate or interest therein (provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential); and (b) in the case of a prospective purchaser of a Certificate
or an interest
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therein, confirmation executed by the requesting Person substantially in the
form of Exhibit L-2 hereto (or such other form as may be reasonably acceptable
to the Trustee) generally to the effect that such Person is a prospective
purchaser of a Certificate or an interest therein, is requesting the information
for use in evaluating a possible investment in Certificates and, subject to the
last sentence of this paragraph, will otherwise keep such information
confidential. The Holders of the Certificates, by their acceptance thereof, will
be deemed to have agreed, subject to the last sentence of this paragraph, to
keep such information confidential, except that any Holder may provide any such
information obtained by it to its auditors, legal counsel and regulators and to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein (provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential). Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner need
keep confidential any information received from the Trustee pursuant to this
Section 8.12(b) that has previously been filed with the Commission, and the
Trustee shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information pursuant
to this Section 8.12(b) that has previously been filed with the Commission.
(c) None of the Trustee, the Master Servicer or the Special Servicer shall
be liable for providing or disseminating information in accordance with the
terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated at least "Aa3" by Moody's and "AA" by Fitch,
written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon execution and delivery of the related Fiscal Agent Agreement, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions and customary equity exceptions,
that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any Person that acts as Fiscal Agent shall, for so
long as it so acts, be deemed a party to this Agreement for all purposes hereof.
Pursuant to the related Fiscal Agent Agreement, each Fiscal Agent, if any, shall
make representations and warranties with respect to itself that are comparable
to those made by the Trustee pursuant to Section 2.07. Notwithstanding anything
contained in this Agreement to the contrary, any Fiscal Agent shall be entitled
to all limitations on liability, rights of reimbursement and indemnities
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to which the Trustee is entitled hereunder (including pursuant to Sections
8.05(b) and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to the terms of
this Agreement, to make any Advance, whether as successor Master Servicer or
otherwise, and has failed to do so in accordance with the terms hereof, the
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the contrary,
any Fiscal Agent shall be entitled to all limitations on liability, rights of
reimbursement and indemnities to which the Trustee is entitled hereunder
(including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the Trustee,
except that all fees and expenses of any Fiscal Agent (other than interest owed
to such Fiscal Agent in respect of unreimbursed Advances) incurred by such
Fiscal Agent in connection with the transactions contemplated by this Agreement
shall be borne by the Trustee, and neither the Trustee nor such Fiscal Agent
shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer, the Special Servicer or the Special
Sub-Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.13 or
otherwise pursuant to this Agreement shall exist only for so long as the Trustee
that appointed it shall act as Trustee hereunder. Any Fiscal Agent may resign or
be removed by the Trustee only if and when the existence of such Fiscal Agent is
no longer necessary for such Trustee to satisfy the eligibility requirements of
Section 8.06; provided that any Fiscal Agent shall be deemed to have resigned at
such time as the Trustee that appointed it resigns or is removed as Trustee
hereunder (in which case the responsibility for appointing a successor Fiscal
Agent in accordance with this Section 8.13(a) shall belong to the successor
Trustee insofar as such appointment is necessary for such successor Trustee to
satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating requirements
of Section 8.06, the Trustee may, at is own expense with the approval of the
Depositor, arrange for the pledging of collateral, the establishment of a
reserve fund or the delivery of a letter of credit, surety bond or other
comparable instrument or for any other security or financial arrangement (any or
all of the foregoing, individually and collectively, an "Advance Security
Arrangement") acceptable to the Controlling Class Representative for purposes of
supporting its back-up advancing obligations hereunder; provided that any
Advance Security Arrangement shall be in such form and amount, and shall be
maintained in such manner, as (i) would permit the Trustee to act in such
capacity without an Adverse Rating Event in respect of any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by each
Rating Agency) and (ii) would not result in an Adverse REMIC Event or an Adverse
Grantor Trust Event (as evidenced by an Opinion of Counsel addressed and
delivered to the Trustee and the Depositor). The Trustee may terminate any
Advance Security Arrangement established by it only if and when (i) the
existence of such Advance Security Arrangement is no longer necessary for the
Trustee to
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satisfy the eligibility requirements of Section 8.06 or (ii) when such Trustee
resigns or is removed as Trustee hereunder.
SECTION 8.15. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 2000 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depositary) by at least 300 Holders and/or Depositary
Participants having accounts with the Depositary), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act, the
rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and properly
file with the Commission monthly, with respect to the Trust, a Current
Report on Form 8-K with copies of the Trustee Reports, the Delinquent Loan
Status Report, the Historical Loan Modification Report, the Historical
Liquidation Report and the REO Status Report attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify the
Depositor of the occurrence or existence of any of the matters identified
in Section 11.09(a) and/or Section 8.15(b) (in each case to the extent that
a Responsible Officer of the Trustee has actual knowledge thereof), (B)
cooperate with the Depositor in obtaining all necessary information in
order to enable the Depositor to prepare a Current Report on Form 8-K
reporting any such matter in accordance with the Exchange Act, the rules
and regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission, and (C) execute and promptly file with the
Commission any such Current Report on Form 8-K prepared by or on behalf of
the Depositor and delivered to the Trustee; and
(iii) within 90 days following the end of such fiscal year, prepare,
execute and properly file with the Commission, with respect to the Trust,
an Annual Report on Form 10-K which complies in all material respects with
the requirements of the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the EDGAR system (or in "ASCII", "Microsoft
Word", "Microsoft Excel" or another format reasonably acceptable to the Trustee)
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it and those items delivered to it in a
format readily convertible to a format suitable for electronic filing via the
EDGAR system) and (y) the Depositor shall be responsible for preparing,
executing and filing (via the EDGAR system within 15 days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee or the Master Servicer, as applicable, in
a format suitable for electronic filing via the EDGAR system (or in "ASCII",
"Microsoft Word", "Microsoft Excel" or another format reasonably acceptable to
the Trustee) any and all items contemplated to be filed with the Commission
pursuant to this Section 8.15(a), to the extent it is otherwise required to
deliver such items to the Trustee or Master Servicer, as applicable.
(b) At all times during the Trust's fiscal year 2000 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered
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Certificates held in book-entry form, through the Depositary) by at least 300
Holders and/or Depositary Participants having accounts with the Depositary, at
all times during such other fiscal year), the Trustee shall monitor for and
promptly notify the Depositor of the occurrence or existence of any of the
following matters of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan or
an REO Property, which acquisition or disposition has not otherwise been
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect of
or pertaining to the Trust or any party to this Agreement, or any actions
by or on behalf of the Trust or any party to this Agreement indicating its
bankruptcy, insolvency or inability to pay its obligations; and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports filed
with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust (other than
fiscal year 2000), the Registered Certificates are held (directly or, in the
case of Registered Certificates held in book-entry form, through the Depositary)
by less than 300 Holders and/or Depositary Participants having accounts with the
Depositary, the Trustee shall, in accordance with the Exchange Act and the rules
and regulations promulgated thereunder, timely file a Form 15 with respect to
the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
(a) Subject to Section 9.02, the Trust and the respective obligations and
responsibilities under this Agreement of the parties hereto (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by the Master Servicer,
the Special Servicer or any single Controlling Class Certificateholder or group
of Controlling Class Certificateholders of all Mortgage Loans and each REO
Property remaining in the Trust Fund at a price (the "Termination Price") equal
to (A) the aggregate Purchase Price of all the Mortgage Loans remaining in the
Trust Fund (exclusive of any REO Mortgage Loan(s)), plus (B) the appraised value
of each REO Property, if any, included in the Trust Fund, such appraisal to be
conducted by a Qualified Appraiser selected by the Special Servicer and approved
by the Trustee and the Master Servicer, minus (C) if the purchaser is the Master
Servicer or the Special Servicer, the aggregate amount of unreimbursed Advances
made by such Person, together with any unpaid Advance Interest in respect of
such unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to the
Master Servicer or the Special Servicer, as the case may be, in connection with
such purchase); and (ii) the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James, living on the date hereof.
(b) The Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders, in
that order of preference, may at its option elect to purchase all the Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (i) of Section 9.01(a) by giving written notice to the other parties
hereto (and, in the case of an election by the Master Servicer or Special
Servicer, to the Holders of the Controlling Class) no later than 60 days prior
to the anticipated date of purchase; provided, however, that the aggregate
Stated Principal Balance of the Mortgage Pool at the time of such election is
less than 1.0% of the Initial Pool Balance; and provided, further, that within
30 days after written notice of such election is so given, no Person with a
higher right of priority to make such an election does so; and provided,
further, that if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of the Mortgage
Loans and any REO Properties, preference shall be given to the Controlling Class
Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class. If the Trust is to be
terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s), such Person(s) shall
deliver to the Master Servicer for deposit (or, if the Master Servicer is the
purchaser, it shall deposit) in the Collection Account (after the Determination
Date, and prior to the Master Servicer Remittance Date, relating to the
anticipated Final Distribution Date) an amount in immediately available funds
equal to the Termination Price and shall reimburse all of the parties hereto
(other than itself, if
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applicable) for all reasonable out-of-pocket costs and expenses incurred by such
parties in connection with such purchase. On the Master Servicer Remittance Date
for the Final Distribution Date, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such
Master Servicer Remittance Date from the Collection Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Collection Account that would otherwise be held for future distribution.
Upon confirmation that the deposit of the Termination Price has been made to the
Collection Account and the reimbursement contemplated by the second preceding
sentence has been made to the parties hereto, the Trustee shall release or cause
to be released to the purchasing party (or its designee) the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the purchasing party as shall be necessary
to effectuate transfer of the Mortgage Loans and REO Properties to the
purchasing party (or its designee).
(c) Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (x) if such notice is given in connection
with the purchase of all the Mortgage Loans and each REO Property remaining in
the Trust Fund by the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder(s), not earlier than the 15th day and not later than the
25th day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein designated. The Trustee shall give such
notice to the other parties hereto at the time such notice is given to
Certificateholders.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts on
deposit in the Distribution Account that is allocable to payments on the
relevant Class in accordance with Section 4.01. Any funds not distributed to any
Holder or Holders of Certificates of any Class on the Final Distribution Date
because of the failure of such Holder or Holders to tender their Certificates
shall, on such date, be set aside and held uninvested in trust and credited to
the account or accounts of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section 9.01
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such reasonable steps to contact the remaining non-tendering
Certificateholders concerning the surrender of their Certificates as it shall
deem appropriate. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders following the first anniversary of the
delivery of such second notice to the non-tendering Certificateholders shall be
paid out of such funds. No interest shall accrue or be payable to any former
Holder on any amount held in trust hereunder. If by the second anniversary of
the delivery of such second notice, all of the Certificates shall not have been
surrendered for cancellation, then, subject to applicable escheat laws, the
Trustee shall distribute to the Class R Certificateholders all unclaimed funds
and other assets which remain subject hereto.
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SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or a Controlling Class
Certificateholder purchases all the Mortgage Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless the purchasing party obtains at its own expense and
delivers to the Trustee an Opinion of Counsel, addressed to the Trustee, to the
effect that the failure of the Trust to comply with the requirements of this
Section 9.02 will not result in an Adverse REMIC Event with respect to any REMIC
Pool:
(i) the Trustee shall specify the first day in the 90-day liquidation
period in a statement attached to the final Tax Return for each REMIC Pool,
pursuant to Treasury regulation Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder (as evidenced by an Opinion of Counsel to such
effect delivered on behalf and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to the time
of making the final payment on the Certificates, the Trustee shall sell all
the Mortgage Loans and each REO Property to the Master Servicer, the
Special Servicer or the applicable Controlling Class Certificateholder(s),
as the case may be, for cash in accordance with Section 9.01; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R Certificates all
remaining cash on hand (other than cash retained to meet claims), and each
REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby authorize the
Trustee to prepare and adopt, on behalf of the Trust, a plan of complete
liquidation of each REMIC Pool in accordance with the terms and conditions of
this Agreement, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Trustee shall elect to treat each REMIC Pool as a REMIC under the
Code and, if necessary, under applicable state law. Each such election will be
made on IRS Form 1066 or other appropriate federal tax or information return or
any appropriate state Tax Returns for the taxable year ending on the last day of
the calendar year in which the Certificates are issued.
(b) The Plurality Class R Certificateholder is hereby designated as the Tax
Matters Person of each REMIC Pool and, in such capacity, shall be responsible to
act on behalf of such REMIC Pool in relation to any tax matter or controversy,
to represent such REMIC Pool in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority, to
request an administrative adjustment as to any taxable year of such REMIC Pool,
to enter into settlement agreements with any governmental taxing agency with
respect to such REMIC Pool, to extend any statute of limitations relating to any
tax item of such REMIC Pool and otherwise to act on behalf of such REMIC Pool in
relation to any tax matter or controversy involving such REMIC Pool; provided
that the Trustee is hereby irrevocably appointed and agrees to act (in
consultation with the Tax Matters Person for each REMIC Pool) as agent and
attorney-in-fact for the Tax Matters Person for each REMIC Pool in the
performance of its duties as such. The legal expenses and costs of any action
described in this Section 10.01(b) and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Trustee's misfeasance, bad faith or negligence in the performance of, or such
Person's reckless disregard of, its obligations or are expressly provided by
this Agreement to be borne by any party hereto.
(c) The Trustee shall prepare or cause to be prepared, execute and file all
of the Tax Returns in respect of each REMIC Pool (other than Tax Returns
required to be filed by the Master Servicer and/or the Special Servicer pursuant
to Section 3.09(g)) and all of the applicable income tax and other information
returns for each Grantor Trust Pool. The expenses of preparing and filing such
returns shall be borne by the Trustee without any right of reimbursement
therefor.
(d) The Trustee shall perform on behalf of each REMIC Pool all reporting
and other tax compliance duties that are the responsibility of such REMIC Pool
under the Code, the REMIC Provisions or other compliance guidance issued by the
IRS or any state or local taxing authority. Included among such duties, the
Trustee shall provide: (i) to any Transferor of a Class R Certificate, such
information as is necessary for the application of any tax relating to the
transfer of a Class R Certificate to any Person who is not a Permitted
Transferee; (ii) to the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required); and (iii) to the IRS, the name, title,
address and telephone number of the Person who will serve as the representative
of each REMIC Pool.
(e) The Trustee shall take such action and shall cause each REMIC Pool to
take such action as shall be necessary to create or maintain the status thereof
as a REMIC under the REMIC Provisions (and the other parties hereto shall assist
it, to the extent reasonably requested by the Trustee),
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to the extent that the Trustee has actual knowledge that any particular action
is required; provided that the Trustee shall be deemed to have knowledge of
relevant tax laws. The Trustee shall not knowingly take or fail to take any
action, or cause any REMIC Pool to take or fail to take any action, that under
the REMIC Provisions, if taken or not taken, as the case may be, could result in
an Adverse REMIC Event in respect of any REMIC Pool or an Adverse Grantor Trust
Event with respect to any Grantor Trust Pool, unless the Trustee has received an
Opinion of Counsel to the effect that the contemplated action or non-action, as
the case may be, will not result in an Adverse REMIC Event or an Adverse Grantor
Trust Event. None of the other parties hereto shall take or fail to take any
action (whether or not authorized hereunder) as to which the Trustee has advised
it in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event or an Adverse Grantor Trust Event could occur with respect
to such action. In addition, prior to taking any action with respect to any
REMIC Pool or the assets thereof, or causing any REMIC Pool to take any action,
which is not contemplated by the terms of this Agreement, each of the other
parties hereto will consult with the Trustee, in writing, with respect to
whether such action could cause an Adverse REMIC Event or an Adverse Grantor
Trust Event to occur, and no such other party shall take any such action or
cause any REMIC Pool to take any such action as to which the Trustee has advised
it in writing that an Adverse REMIC Event or an Adverse Grantor Trust Event
could occur. The Trustee may consult with counsel to make such written advice,
and the cost of same shall be borne by the party seeking to take the action not
permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)) , then such tax, together with all incidental costs and
expenses (including penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Trustee, if such tax arises out of or results from a
breach of any of its obligations under Article IV, Article VIII or this Article
X; (ii) any Fiscal Agent, if such tax arises out of or results from a breach of
any of its obligations under Article IV or this Article X; (iii) the Master
Servicer, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under Article III or this Article X; (iv) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Article X;
(v) the Special Sub-Servicer, if such tax arises out of or results from a breach
by the Special Sub-Servicer of any of its obligations under this Article X; or
(vi) the Trust, out of the Trust Fund (exclusive of the Grantor Trust Pools), in
all other instances. If any tax is imposed on any Grantor Trust Pool, such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Article X;
(ii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iii) the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under Article IV, Article VIII or this Article
X; (iv) any Fiscal Agent, if such tax arises out of or results from a breach of
any of its obligations under Article IV or this Article X; (v) the Special
Sub-Servicer, if such tax arises out of or results from a breach by the Special
Sub-Servicer of any of its obligations under this Article X; or (vi) the Trust,
out of the portion of the Trust Fund constituting such Grantor Trust Pool, in
all other instances. Consistent with the foregoing, any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee out of amounts on deposit in the Distribution
Account.
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(g) The Trustee and, to the extent that records are maintained thereby in
the normal course of its business, each of the other parties hereto shall, for
federal income tax purposes, maintain books and records with respect to each
REMIC Pool and each Grantor Trust Pool on a calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall not
(except as contemplated by Section 2.03) accept any contributions of assets to
any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution) to the effect that the
inclusion of such assets in such REMIC Pool will not result in an Adverse REMIC
Event in respect of such REMIC Pool or an Adverse Grantor Trust Event with
respect to any Grantor Trust Pool.
(i) None of the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee or any Fiscal Agent shall consent to or, to the extent
it is within the control of such Person, permit: (i) the sale or disposition of
any Mortgage Loan (except in connection with (A) a breach of any representation
or warranty regarding any Mortgage Loan set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement or, in the case of a Union Capital
Mortgage Loan, the Union Capital Agreement, (B) the foreclosure, default or
reasonably foreseeable material default of a Mortgage Loan, including the sale
or other disposition of a Mortgaged Property acquired by foreclosure, deed in
lieu of foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool, or (D)
the termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust (other
than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than a
Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool or an Adverse Grantor Trust Event with respect to any Grantor Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the Master
Servicer, the Special Servicer, the Special Sub-Servicer or the Trustee shall
enter into any arrangement by which any REMIC Pool will receive a fee or other
compensation for services or, to the extent it is within the control of such
Person, permit any REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code. At all times as may
be required by the Code, each of the respective parties hereto (to the extent it
is within its control) shall ensure that substantially all of the assets of each
REMIC Pool will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Within 30 days after the related Startup Day, the Trustee shall prepare
and file with the IRS, with respect to each REMIC Pool, IRS Form 8811
"Information Return for Real Estate Mortgage Investment Conduits (REMICs) and
Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund consisting of
Post-ARD Additional Interest on the ARD Loans and the Class D Sub-Account shall
constitute, and that the affairs of such portion of the Trust Fund shall be
conducted so as to qualify as, a Grantor Trust, and the
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provisions hereof shall be interpreted consistently with this intention. In
addition, the parties intend that the portion of the Trust Fund consisting of
the Holiday Inn Orlando Closing Fee and the Class E Sub-Account shall
constitute, and that the affairs of such portion of the Trust Fund shall be
conducted so as to qualify as a Grantor Trust, and the provisions hereof shall
be interpreted consistently with this intention. Finally, the parties intend
that the portion of the Trust Fund consisting of the REMIC I Residual Interest,
the REMIC II Residual Interest and the REMIC III Residual Interest shall
constitute, and the affairs of such portion of the Trust Fund shall be conducted
so as to qualify as, a Grantor Trust, and the provisions hereof shall be
interpreted consistently with this intention. The Trustee shall also perform on
behalf of each Grantor Trust Pool all reporting and other tax compliance duties
that are the responsibility of such Grantor Trust Pool under the Code or any
compliance guidance issued by the IRS or any state or local taxing authorities.
The expenses of preparing and filing such returns shall be borne by the Trustee.
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Special
Sub-Servicer and Fiscal Agent to Cooperate with Trustee.
(a) The Depositor shall provide or cause to be provided to the Trustee,
within 10 days after the Closing Date, all information or data that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer, the Special
Sub-Servicer and any Fiscal Agent shall furnish such reports, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Trustee in order to enable it to perform its duties
under this Article X.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the parties hereto, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct, modify or supplement any provision
herein which may be inconsistent with any other provision herein or to correct
any error, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the then
existing provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by (A) the REMIC Provisions (if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated) or (B)
the Securities Act or the rules thereunder (if the Securities Act or such rules
are amended or clarified such that any such requirement may be relaxed or
eliminated), (v) as evidenced by an Opinion of Counsel delivered to the Trustee,
either (X) to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to any REMIC Pool or any Grantor Trust Pool
at least from the effective date of such amendment, or (Y) to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of any
REMIC Pool or any Grantor Trust Pool, (vi) subject to Section 5.02(d)(iv), to
modify, add to or eliminate any of the provisions of Section 5.02(d)(i), (ii) or
(iii), or (vii) to otherwise modify or delete existing provisions of this
Agreement; provided that such amendment (other than any amendment for any of the
specific purposes described in clauses (v) and (vi) above) shall not adversely
affect in any material respect the interests of any Certificateholder or any
third-party beneficiary to this Agreement or any provision hereof, as evidenced
by an Opinion of Counsel obtained by or delivered to the Trustee to such effect;
and provided, further, that any such amendment covered solely by clause (vii)
above shall not (as confirmed in writing to the Trustee by each Rating Agency)
result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 66-2/3% of the Voting Rights allocated to all of the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans and/or REO Properties which
are required to be distributed on any Certificate, without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than as
described in clause (i) above, without the consent of the Holders of all
Certificates of such Class, (iii) modify the provisions of this Section 11.01 or
the definition of "Servicing Standard", without the consent of the Holders of
all Certificates then outstanding or (iv) adversely affect in any material
respect the interests of any third-party beneficiary to this Agreement or any
provision herein, without the consent of such third-party beneficiary.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the
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Depositor or any Affiliate of the Depositor shall be entitled to the same Voting
Rights with respect to the matters described above as they would if registered
in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall first have
obtained or been furnished with an Opinion of Counsel to the effect that neither
such amendment nor the exercise of any power granted to any party hereto in
accordance with such amendment will result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Trustee shall send a copy thereof to each Certificateholder
and to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization, execution
and delivery thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any amendment
pursuant to this Section 11.01 that affects its rights, duties and immunities
under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a) or (c) shall be borne by the Person seeking the related amendment,
except that if the Trustee requests any amendment of this Agreement that it
reasonably believes protects or is in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust (payable out of the Collection
Account), but only upon written direction of the Depositor accompanied by an
Opinion of Counsel (the cost of which may be paid out of the Collection Account)
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless,
with respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and unless also (except in the case of a default by the Trustee) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of any
other Holders of Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder (which priority or preference is not
otherwise provided for herein), or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance with
the substantive laws of the State of New York applicable to agreements made and
to be performed entirely in said State, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws. The
parties hereto intend that the provisions of Section 5-1401 of the New York
General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in writing
(including by telecopy) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given when delivered to or, in the case of telecopy
notice, when received: (i) in the case of the Depositor, DLJ Commercial Mortgage
Corp., 277 Park Avenue, 9th Floor, New York, New York 10172, Attention: N. Dante
LaRocca, telecopy number: (212) 892-2003; (ii) in the case of the Master
Servicer and the Special Sub-Servicer, Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage, 911 Main Street, Suite 1500, Kansas City, Missouri 64105,
telecopy number: (816) 221-8848, Attention: E.J. Burke (with a copy to Robert C.
Bowes , KeyBank National Association, 127 Public Square, Cleveland, Ohio 44114,
telecopy: (216) 689-5681); (iii) in the case of the Trustee, Wells Fargo Bank
Minnesota, N.A., 11000 Broken Land Parkway Columbia, Maryland 21044-3562,
Attention: Corporate Trust Administration (CMBS) - DLJ Commercial Mortgage Corp.
Series 2000-CKP1, telecopy number (410)
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884-2360; (iv) in the case of the Special Servicer, Midland Loan Services, Inc.,
210 West 10th Street, 6th Floor, Kansas City, Missouri 64105, Attention: Chief
Executive Officer, telecopy number (816) 435-2326; (v) in the case of the Rating
Agencies, (A) Moody's Investors Services Inc., 99 Church Street, New York, New
York 10007, Attention: Commercial MBS Monitoring Department, telecopy number
(212) 553-0300, and (B) Fitch, Inc., One State Street Plaza, New York, New York
10004, Attention: CMBS Surveillance Manager, telecopy number: (212) 635-0295;
(vi) in the case of any Mortgage Loan Seller, the address for notices to such
Mortgage Loan Seller under the related Mortgage Loan Purchase Agreement; and
(vii) in the case of Union Capital, Union Capital Investments LLC, 3490 Piedmont
Road, Suite 1010, Atlanta, GA 30305, Attention: President, telecopy number (404)
812-4808; or as to each such Person such other address and/or telecopy number as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and, as
third party beneficiaries (with all right to enforce the obligations hereunder
intended for their benefit as if a party hereto), the Underwriters, the
Designated Sub-Servicers and the non-parties referred to in Sections 6.03, 8.05
and 3.22(g), and all such provisions shall inure to the benefit of the
Certificateholders. No other person, including any Borrower, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor.
(a) The Trustee shall promptly provide notice to each Rating Agency and the
Depositor with respect to each of the following of which a Responsible Officer
of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation, termination, merger or consolidation of the
Master Servicer, the Special Servicer or the Special Sub-Servicer and the
appointment of a successor;
-202-
<PAGE>
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) any repurchase or substitution of a Mortgage Loan by a Mortgage
Loan Seller or Union Capital as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each Rating Agency
and the Depositor with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer, the Special Servicer and the Special
Sub-Servicer, as the case may be, shall furnish each Rating Agency such
information with respect to the Mortgage Loans as such Rating Agency shall
reasonably request and which the Master Servicer, the Special Servicer or the
Special Sub-Servicer, as the case may be, can reasonably provide to the extent
consistent with applicable law and the related Mortgage Loan documents. In any
event, the Master Servicer, the Special Servicer and the Special Sub-Servicer
shall notify each Rating Agency with respect to each of the following of which
it has actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a tenant
representing more than 20% of the total net rentable square feet of space)
at any Mortgaged Property used for retail purposes or any change in the
term of the lease for an anchor tenant at any such Mortgaged Property; and
(iii) any assumption of, or release or substitution of collateral for,
a Mortgage Loan that represents greater than 2% of the then aggregate
Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged Property;
(v) any change in a franchise; and
(vi) any loan subject to bankruptcy proceedings.
(vii) any release of a Letter of Credit or debt service reserve with
respect to any Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer, as the case may
be, shall promptly furnish (in hard copy format or through use of the Master
Servicer's Internet Website, to each Rating Agency copies of the following items
(in each case, at or about the same time that it delivers or causes the delivery
of such item to the Trustee):
-203-
<PAGE>
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e).
(e) The Trustee shall promptly deliver or otherwise make available to each
Rating Agency (in hard copy format or through use of the Trustee's Internet
Website) a copy of each Certificateholder Report forwarded to the Holders of the
Certificates (in each case, at or about the same time that it delivers such
Certificateholder Report to such Holders). Any Restricted Servicer Reports
delivered electronically as aforesaid shall be accessible on the Trustee's
Internet Website only with the use of a password, which shall be provided by the
Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the Trustee, upon
request, a listing of the then-current rating (if any) assigned by such Rating
Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicer, the Special Servicer or the Special
Sub-Servicer, as the case may be, shall deliver to the Controlling Class
Representative a copy of each notice or other item of information such Person is
required to deliver to the Rating Agencies pursuant to Section 11.09, in each
case simultaneously with the delivery thereof to the Rating Agencies, to the
extent not already delivered pursuant to this Agreement.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and may
not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
-204-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers thereunto duly authorized, in each case as
of the day and year first above written.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By:
--------------------------------------
Name:
Title:
KEY CORPORATE CAPITAL INC. d/b/a KEY
COMMERCIAL MORTGAGE
Master Servicer and Special Sub-Servicer
By:
--------------------------------------
Name:
Title:
MIDLAND LOAN SERVICES, INC.
Special Servicer
By:
--------------------------------------
Name:
Title:
WELLS FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By:
--------------------------------------
Name:
Title:
<PAGE>
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of ______ 2000, before me, a notary public in and for
said State, personally appeared N. Dante LaRocca, personally known to me to be a
Senior Vice President of DLJ COMMERCIAL MORTGAGE CORP., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of ______ 2000, before me, a notary public in and for
said State, personally appeared E.J. Burke, known to me to be a Senior Vice
President of KEY CORPORATE CAPITAL INC. d/b/a KEY COMMERCIAL MORTGAGE, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
--------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of ______ 2000, before me, a notary public in and for
said State, personally appeared ___________________________, known to me to be a
_____________________ of MIDLAND LOAN SERVICES, INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of ______ 2000, before me, a notary public in and for
said State, personally appeared Leslie A. Gaskill, known to me to be a
Vice-President of WELLS FARGO BANK MINNESOTA, N.A., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS S CERTIFICATES
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-CKP1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by:
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<S> <C>
Pass-Through Rate: Class Notional Amount of the Class S
Variable Certificates as of the Closing Date:
$__________
Closing Date: November 7, 2000 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
$__________
First Distribution Date: Aggregate Stated Principal Balance of the
December 11, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,289,918,771
Master Servicer and Special Sub-Servicer: Trustee:
Key Corporate Capital Inc. d/b/a Key Wells Fargo Bank Minnesota, N.A.
Commercial Mortgage
Special Servicer:
Midland Loan Services, Inc.
Certificate No. S-___ CUSIP No.: ________________
</TABLE>
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ANY
AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., WELLS FARGO BANK MINNESOTA, N.A., KEY CORPORATE
CAPITAL INC. D/B/A KEY COMMERCIAL MORTGAGE, MIDLAND LOAN SERVICES, INC., OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
A-1-2
<PAGE>
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional amount
of this Certificate (its "Certificate Notional Amount") as of the Closing Date
by the aggregate notional amount of all the Class S Certificates (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Class S Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of November 1, 2000 (the "Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor", which term includes any
successor entity under the Agreement), Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage as master servicer (in such capacity, the "Master Servicer,"
which term includes any successor entity under the Agreement) and as special
sub-servicer (in such capacity, the "Special Sub-Servicer", which term includes
any successor entity under the Agreement), Midland Loan Services, Inc. as
special servicer (the "Special Servicer," which term includes any successor
entity under the Agreement) and Wells Fargo Bank Minnesota, N.A. as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned thereto in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class S Certificates on the
applicable Distribution Date pursuant to the Agreement. The "Determination Date"
in each month, commencing in December 2000, will be the fourth day of such month
or, if such fourth day is not a Business Day, then the immediately preceding
Business Day. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
A-1-3
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If a transfer of an interest in this Certificate, while it 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 this Certificate by the Depositor or an Affiliate of the Depositor),
then the Certificate Owner desiring to effect such transfer must obtain either:
(i) a certificate from the prospective Transferee substantially in the form
attached either as Exhibit F-2C or as Exhibit F-2D to the Agreement; or (ii) an
Opinion of Counsel to the effect that such transfer may be made without
registration under the Securities Act. Any Certificateholder or Certificate
Owner desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"),
Prudential Securities Incorporated ("PSI"), Credit Suisse First Boston
Corporation ("CSFB"), the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Special Sub-Servicer and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
A-1-4
<PAGE>
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate (and, if
applicable, any Certificate Owner shall refuse to transfer an interest in this
Certificate), unless it has received from the prospective Transferee either (i)
a certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if this Certificate is
being acquired by, on behalf of or with assets of a Plan in reliance upon the
Underwriter Exemptions (insofar as they relate to DLJSC, PSI and CSFB), a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Special Sub-Servicer, any Sub-Servicer or any Borrower with respect to
Mortgage Loans constituting 5% of the aggregate unamortized principal of all the
Mortgage Loans determined as of the Closing Date, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or result in the imposition of an excise tax under Section 4975 of
the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Certificate Registrar to confirm that, it has (i)
sole investment discretion with respect to each such account and (ii) full power
to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the two preceding paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
A-1-5
<PAGE>
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66-2/3% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate
A-1-6
<PAGE>
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, including
any amendment necessary to maintain the status of any REMIC Pool as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By: ____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to
in the within-mentioned Agreement.
Dated:
WELLS FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By: ____________________________________
Authorized Representative
A-1-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
-for the account of__________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________.
This information is provided by _______________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-1-9
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1A AND A-1B CERTIFICATES
CLASS [A-1A] [A-1B] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2000-CKP1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [A-1A]
____% per annum [A-1B] Certificates as of the Closing Date:
$----------
Closing Date: November 7, 2000 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$----------
First Distribution Date: Aggregate Stated Principal Balance of the
December 11, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,289,918,771
Master Servicer and Special Sub-Servicer: Trustee:
Key Corporate Capital Inc. d/b/a Key Wells Fargo Bank Minnesota, N.A.
Commercial Mortgage
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [A-1A] [A-1B]-___ CUSIP No.:___________________
</TABLE>
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ANY
AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., WELLS FARGO BANK MINNESOTA, N.A., KEY CORPORATE
CAPITAL INC. D/B/A KEY COMMERCIAL MORTGAGE, MIDLAND LOAN SERVICES, INC., OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class [A-1A] [A-1B]
Certificates (their "Class Principal Balance") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [A-1A] [A-1B] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of November 1, 2000 (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Key Corporate Capital Inc. d/b/a Key Commercial Mortgage as master
servicer (the "Master Servicer," which term includes any successor entity under
the Agreement) and as special sub-servicer (in such capacity, the "Special
Sub-Servicer", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc. as the special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Wells Fargo
Bank Minnesota, N.A. as trustee (the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which
A-2-2
<PAGE>
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [A-1A] [A-1B]
Certificates on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in December 2000, will be the
fourth day of such month or, if such fourth day is not a Business Day, then the
immediately preceding Business Day. All distributions made under the Agreement
on this Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this
A-2-3
<PAGE>
Certificate for registration of transfer at the offices of the Certificate
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Certificate Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized denominations evidencing
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66-2/3% of the
Voting Rights allocated to all
A-2-4
<PAGE>
of the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By: _____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1A] [A-1B] Certificates referred to in the
within-mentioned Agreement.
Dated:
WELLS FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By: _____________________________________
Authorized Representative
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
_______________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to _____________
___________________________) and all applicable statements and notices should be
mailed to ____________________________________________________________________.
This information is provided by __________________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2, CLASS A-3, CLASS A-4,
CLASS B-1 CLASS B-2 AND CLASS B-3 CERTIFICATES
CLASS [A-2] [A-3] [A-4] [B-1] [B-2] [B-3] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CKP1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class
[___% per annum FOR CLASS A-2 AND [A-2] [A-3] [A-4] [B-1] [B-2] [B-3]
CLASS A-3 CERTIFICATES] [Variable FOR Certificates as of the Closing Date:
CLASS A-4, CLASS B-1, CLASS B-2 and $__________
CLASS B-3 CERTIFICATES]
Closing Date: November 7, 2000 Initial Certificate Principal Balance
of this Certificate as of the Closing Date:
$__________
First Distribution Date: Aggregate Stated Principal Balance of
December 11, 2000 the Mortgage Loans as of the Closing
Date: ("Initial Pool Balance"):
$1,289,918,771
Master Servicer and Special Trustee:
Sub-Servicer: Key Corporate Capital Inc. Wells Fargo Bank Minnesota, N.A.
d/b/a Key Commercial Mortgage
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [A-2] [A-3] [A-4] [B-1] [B-2] [B-3] CUSIP No.:_________________
- ____
</TABLE>
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ANY
AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., WELLS FARGO BANK MINNESOTA, N.A., KEY CORPORATE
CAPITAL INC. D/B/A KEY COMMERCIAL MORTGAGE, MIDLAND LOAN SERVICES, INC., OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all
A-3-2
<PAGE>
the Class [A-2] [A-3] [A-4] [B-1] [B-2] [B-3] Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Class [A-2] [A-3] [A-4] [B-1]
[B-2] [B-3] Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of November 1,
2000 (the "Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor", which term includes any successor entity under the Agreement), Key
Corporate Capital Inc. d/b/a Key Commercial Mortgage as master servicer (the
"Master Servicer," which term includes any successor entity under the Agreement)
and as special sub-servicer (in such capacity, the "Special Sub-Servicer", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc. as special servicer (the "Special Servicer," which term includes any
successor entity under the Agreement) and Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned thereto in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [A-2] [A-3] [A-4]
[B-1] [B-2] [B-3] Certificates on the applicable Distribution Date pursuant to
the Agreement. The "Determination Date" in each month, commencing in December
2000, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no later than the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any portion of an Unfunded Principal Balance Reduction
in respect of this Certificate) will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to the Holder hereof of
such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such
A-3-3
<PAGE>
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as
A-3-4
<PAGE>
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Special Sub-Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66-2/3% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By: ____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-2] [A-3] [A-4] [B-1] [B-2] [B-3] Certificates
referred to in the within-mentioned Agreement.
Dated:
WELLS FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By: ____________________________________
Authorized Representative
A-3-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to _____________
______________________________) and all applicable statements and notices should
be mailed to __________________________________________________________________.
This information is provided by __________________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-3-7
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-4, CLASS B-5, CLASS B-6,
CLASS B-7, CLASS B-8, CLASS B-9 AND CLASS C CERTIFICATES
CLASS [B-4] [B-5] [B-6] [B-7] [B-8] [B-9] [C] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CKP1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [B-4]
_____% per annum [B-5] [B-6] [B-7] [B-8] [B-9] [C]
Certificates as of the Closing Date:
$----------
Closing Date: November 7, 2000 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$----------
First Distribution Date: Aggregate Stated Principal Balance of the
December 11, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
Master Servicer and Special Sub-Servicer: $1,289,918,771
Key Corporate Capital Inc.
d/b/a Key Commercial Mortgage
Special Servicer: Trustee:
Midland Loan Services, Inc. Wells Fargo Bank Minnesota, N.A.
Certificate No. [B-4] [B-5] [B-6] [B-7] [B-8] CUSIP No.:__________________
[B-9] [C] - ___
</TABLE>
A-4-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(A) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., WELLS FARGO BANK MINNESOTA, N.A., KEY CORPORATE
CAPITAL INC. D/B/A KEY COMMERCIAL MORTGAGE, MIDLAND LOAN SERVICES, INC., OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [B-4] [B-5]
[B-6] [B-7] [B-8] [B-9] [C] Certificates (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
Fund evidenced by all the Class [B-4] [B-5] [B-6] [B-7] [B-8] [B-9] [C]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of November 1, 2000 (the
"Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Key Corporate
Capital Inc. d/b/a Key Commercial Mortgage as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement) and as
special sub-servicer (in such capacity, the "Special Sub-Servicer", which term
includes any successor entity under the Agreement), Midland Loan Services, Inc.
as special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement) and Wells Fargo Bank Minnesota, N.A. as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned thereto in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [B-4] [B-5] [B-6]
[B-7] [B-8] [B-9] [C] Certificates on the applicable Distribution Date pursuant
to the Agreement. The "Determination Date" in each month, commencing in December
2000, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no later than the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing,
A-4-3
<PAGE>
the final distribution on this Certificate (determined without regard to any
possible future reimbursement of any portion of an Unfunded Principal Balance
Reduction in respect of this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust or of the Depositor, the Master Servicer, the Special Servicer, the
Special Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Donaldson, Lufkin & Jenrette
Securities Corporation, Prudential Securities Incorporated, Credit Suisse First
Boston Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Special Sub-Servicer
A-4-4
<PAGE>
and the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition is not exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer or an Institutional Accredited Investor. The
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee a certification,
substantially in the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the
Agreement, to the effect that such prospective Transferee is a Qualified
Institutional Buyer or a certification from the prospective Transferee to the
effect that such prospective Transferee is an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the three preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations
A-4-5
<PAGE>
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66-2/3% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
A-4-6
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-4-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By: ____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-4] [B-5] [B-6] [B-7]
[B-8] [B-9] [C] Certificates referred to in the within-mentioned Agreement.
Dated:
WELLS FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By: ____________________________________
Authorized Representative
A-4-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to _____________
_____________________________________________) and all applicable statements and
notices should be mailed to ___________________________________________________.
This information is provided by __________________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-4-9
<PAGE>
EXHIBIT A-5
FORM OF CLASS D AND CLASS E CERTIFICATES
CLASS [D] [E] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CKP1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<S> <C>
Cut-off Date: November 1, 2000 Percentage Interest evidenced by this Class
[D] [E] Certificate: ______%
First Distribution Date: Aggregate Stated Principal Balance of the
December 11, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,289,918,771
Master Servicer and Special Sub-Servicer: Trustee:
Key Corporate Capital Inc. Wells Fargo Bank Minnesota, N.A.
d/b/a Key Commercial Mortgage
Special Servicer:
Midland Loan Services, Inc.
Certificate No. [D] [E] - ___ CUSIP No.:______________________
</TABLE>
A-5-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[FOR CLASS D CERTIFICATES: THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY,
THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR
WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(A) OF
REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY
OWNERS ARE DESCRIBED BY SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED
INVESTOR").]
[FOR CLASS E CERTIFICATES: THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY,
THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER").]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., WELLS FARGO BANK MINNESOTA, N.A., KEY CORPORATE
CAPITAL INC. D/B/A KEY COMMERCIAL MORTGAGE,
A-5-2
<PAGE>
MIDLAND LOAN SERVICES, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [D] [E] Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of November 1,
2000 (the "Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor", which term includes any successor entity under the Agreement), Key
Corporate Capital Inc. d/b/a Key Commercial Mortgage as master servicer (the
"Master Servicer", which term includes any successor entity under the Agreement)
and as special sub-servicer (in such capacity, the "Special Sub-Servicer", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc. as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned thereto in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [D] [E] Certificates
on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in December 2000, will be the
fourth day of such month or, if such fourth day is not a Business Day, then the
immediately preceding Business Day. All distributions made under the Agreement
on this Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
A-5-3
<PAGE>
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust or of the Depositor, the Master Servicer, the Special Servicer, the
Special Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Donaldson, Lufkin & Jenrette
Securities Corporation, Prudential Securities Incorporated, Credit Suisse First
Boston Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Special Sub-Servicer and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
[FOR CLASS D CERTIFICATES: No transfer of this Certificate or any interest
herein shall be made except to a Qualified Institutional Buyer or an
Institutional Accredited Investor. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it
A-5-4
<PAGE>
has received from the prospective Transferee a certification, substantially in
the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the
effect that such prospective Transferee is a Qualified Institutional Buyer or a
certification from the prospective Transferee to the effect that such
prospective Transferee is an Institutional Accredited Investor.]
[FOR CLASS E CERTIFICATES: No transfer of this Certificate or any interest
herein shall be made except to a Qualified Institutional Buyer. The Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee a certification, substantially in
the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the
effect that such prospective Transferee is a Qualified Institutional Buyer.]
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the three preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations
A-5-5
<PAGE>
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66-2/3% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
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<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-5-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By: ____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [D] [E] Certificates referred to in the
within-mentioned Agreement.
Dated:
WELLS FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By: ____________________________________
Authorized Representative
A-5-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ) and all
applicable statements and notices should be mailed to __________________________
_______________________________________________________________________________.
This information is provided by ______________________________________,
the Assignee named above, or _________________________________, as its agent.
A-5-9
<PAGE>
EXHIBIT A-6
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CKP1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<S> <C>
Closing Date: November 7, 2000 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal Balance of the
December 11, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,289,918,771
Master Servicer and Special Sub-Servicer: Trustee:
Key Corporate Capital Inc. Wells Fargo Bank Minnesota, N.A.
d/b/a Key Commercial Mortgage
Special Servicer:
Midland Loan Services, Inc.
Certificate No. R- ___ CUSIP No.:__________________
</TABLE>
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., WELLS FARGO BANK MINNESOTA, N.A., KEY CORPORATE
CAPITAL INC. D/B/A KEY COMMERCIAL MORTGAGE, MIDLAND LOAN SERVICES, INC., OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT
A-6-2
<PAGE>
TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY
PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH
TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE
OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of November 1,
2000 (the "Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor", which term includes any successor entity under the Agreement), Key
Corporate Capital Inc. d/b/a Key Commercial Mortgage as master servicer (the
"Master Servicer", which term includes any successor entity under the Agreement)
and as special sub-servicer (in such capacity, the "Special Sub-Servicer", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc. as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned thereto in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class R Certificates on the
applicable Distribution Date pursuant to the Agreement. The "Determination Date"
in each month, commencing in December 2000, will be the fourth day of such month
or, if such fourth day is not a Business Day, then the immediately preceding
Business Day. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
A-6-3
<PAGE>
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Master Servicer, the Special Servicer, the Special Sub-Servicer, the Trustee,
any Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Donaldson, Lufkin & Jenrette
Securities Corporation, Prudential Securities Incorporated, Credit Suisse First
Boston Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Special Sub-Servicer and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification, substantially in
A-6-4
<PAGE>
the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the
effect that such prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either: (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee (i) to deliver payments to a Person other
than such Person and (ii) to negotiate the terms of any mandatory disposition,
to execute all instruments of Transfer and to do all other things necessary in
connection with any such disposition. Each Person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership
A-6-5
<PAGE>
Interest in this Certificate to such proposed Transferee shall be effected. In
connection therewith, the Certificate Registrar shall not register the transfer
of an Ownership Interest in this Certificate to any entity classified as a
partnership under the Code unless at the time of transfer, all of its beneficial
owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee written notice that
it is a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the five preceding
paragraphs.
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
the following: (a) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC Pool to cease to qualify
as a REMIC or be subject to an entity-level tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a REMIC-related
tax caused by the Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". In addition, if such Transferee
is classified as a partnership under the Code, such Transferee can only be a
"Permitted Transferee" if all of its beneficial owners are United States
Persons.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or political subdivision thereof or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives
A-6-6
<PAGE>
described in Section 1381 of the Code and (v) any other Person so designated by
the Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Special Servicer, the Special
Sub-Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Special Sub-Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the
A-6-7
<PAGE>
Special Servicer or any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders to purchase from the Trust Fund all the
Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Special Sub-Servicer,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the Special Sub-Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66-2/3% of the
Voting Rights allocated to all of the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-6-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this
Certificate to be duly executed.
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By: ____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to
in the within-mentioned Agreement.
Dated:
WELLS FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By: ____________________________________
Authorized Representative
A-6-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to for the account of __________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to ) and all
applicable statements and notices should be mailed to __________________________
_______________________________________________________________________________.
This information is provided by __________________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-6-10
<PAGE>
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
[See Attached Schedule]
B-1A-1
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-CKP1
<TABLE>
<CAPTION>
ORIGINAL
PRINCIPAL
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE
- ------------- ------- ---- ----- -------- -------
<S> <C> <C> <C> <C> <C> <C>
1 437 Madison Avenue 437 Madison Avenue New York NY 10022 $ 87,500,000
4 Alliance GD FH F1
4a Seven Gables Apartments 11 Laburnam Avenue Richmond VA 23223 39,619,141
4b High Ridge Apartments 8111 Manderville Lane Dallas TX 75231
5 McCandless Towers II 3965 Freedom Circle Santa Clara CA 95054 37,000,000
6 Alliance GD FH F2
6a Timbercreek Apartments 6001 Skillman Street Dallas TX 75231 30,380,859
6b Deering Manor Apartments 2720 Hopkins Road Richmond VA 23234
7 Commons at Sugarhouse 2100 South Highland Drive Salt Lake City UT 84106 28,400,000
9 Metroplex 3530 Wilshire Boulevard Los Angeles CA 90010 27,500,000
14 The Genesis Loan
14a Autumn Ridge Apartments 9607 Wickersham Road Dallas TX 75238 17,100,000
14b Summer Glen Apartments 9624 Rolling Rock Lane Dallas TX 75238
25 Highland Cove Retirement 3750 South Highland Drive Salt Lake City UT 84106 12,187,500
Community
26 Regency Warehouse 100 Adams Street Clinton MA 01510 11,625,000
28 Holiday Inn Orlando 5905 South Kirkman Road Orlando FL 32819 12,000,000
38 One Cameron Place 7901 Cameron Road Austin TX 78752 9,750,000
41 CRYSTAL MOUNTAIN OFFICE 9433 Bee Caves Road Austin TX 78733 5,550,000
PARK (2C)
42 LAKE POINTE CENTER II (2C) 11612 Bee Caves Road Austin TX 78733 3,800,000
47 Pembroke Office Park 281 Independence Boulevard Virginia Beach VA 23462 8,600,000
53 Kmart - Allen 111 North Central Allen TX 75002 6,750,000
Expressway
59 Garfield Suites Hotel 2 Garfield Place Cincinnati OH 45202 5,750,000
61 Big-K Plaza 681 Main Street Torrington CT 06790 5,700,000
67 210 Main Street 210 Main Street Hackensack NJ 07601 5,500,000
68 Clearbrook Village 3516 Tall Oaks Circle Memphis TN 38118 5,238,272
Apartments
69 Brookdale Shopping Center 2500 8th Street South Moorhead MN 56560 5,200,000
70 Courtyard by Marriott Hotel 16700 Northcross Drive Huntersville NC 28078 5,150,000
71 Hamilton Park Apartments 6300 Ranchester Drive Houston TX 77036 5,125,000
72 Brookwood Shopping Center 9000 South Western Avenue Oklahoma City OK 73139 5,025,000
74 Landmark Garden Apartments 1551 West Airport Freeway Irving TX 75062 5,000,000
75 Applecreek Apartments 9874 Dalecrest Drive Dallas TX 75220 4,925,000
76 Plaza At The Pointe 35248-35324 23 Mile Road New Baltimore MI 48047 4,920,000
Shopping Center
78 Scottsdale Airpark II 16001 North Scottsdale AZ 85260 4,500,000
Greenway-Hayden Loop and
16000 North 80th Street
79 New Market Square Shopping 1040 Henderson Drive Jacksonville NC 27540 4,500,000
Center
80 Maple Leaf Apartments 7150, 7170 & 7190 North Fresno CA 93720 4,205,000
Maple Avenue
86 Woodridge Apartments 301 North FM 1417 Sherman TX 75092 4,000,000
87 Dunwoody Plaza 1410 Dunwoody Village Atlanta GA 30338 4,000,000
Parkway
88 Schaumburg Plaza 1443 West Schaumburg Road Schaumburg IL 60194 3,894,691
90 Harbor Technology Center 20280-20300 Del Amo Torrance CA 90502 3,804,000
Boulevard
91 Stove Works Office Building 112 Krog Street Atlanta GA 30307 3,800,000
95 Forest Hills Apartments 5003-5017 & 5049 West Oak Forest IL 60452 3,700,000
159th Street
101 Pine Trails Apartments 552 Spring Ridge Road Clinton MS 39056 3,200,000
105 Bruno's Shopping Center 8020 & 8050 Highway 72 Madison AL 35758 3,300,000
West
106 Laddins Rock 497-501 West Main Street Stamford CT 06902 3,120,000
107 Christine Place Apartments 248 North MacDonald Mesa AZ 85201 3,115,000
Street and 239 North
Robson Street
108 Best Western Siesta Beach 5311 Ocean Boulevard Sarasota FL 34242 3,200,000
Resort
109 Richland Hills Apartments 5800 Maudina Drive Nashville TN 37209 3,100,000
116 214 Main Street 214 Main Street Hackensack NJ 07601 2,725,000
118 WINDER VILLAGE 398 Fairview Avenue Winder GA 30680 1,560,000
MANUFACTURED HOUSING
COMMUNITY (2D)
119 RUSSELL VILLAGE 1025 Midland Avenue Winder GA 30680 1,120,000
MANUFACTURED HOUSING
COMMUNITY (2D)
121 Phoenix Park Apartments 369 Long Hill Road Groton CT 06340 2,611,000
123 Chabot Office Plaza 4780 Chabot Drive Pleasanton CA 94588 2,550,000
128 Miggy's Mall Shopping 9 Fox Run Center East Stroudsburg PA 18301 2,438,000
Center
132 Five Star Business Park 13914-13932 Valley La Puente CA 91744 2,300,000
Boulevard
134 Oaks Apartments 1912 South 5th Street Waco TX 76706 2,268,000
141 The Kirkland Loan
141a Lakeview Arms Apartments 800 Magee Drive Brookhaven MS 39601 2,100,000
141b Jackson Square Apartments 730 North Jackson Street Brookhaven MS 39601
144 Foxpoint Commons 13701-13795 West Jewell Lakewood CO 80228 1,965,000
Avenue
148 Flamingo West Apartments 3707 West Idlewild Avenue Tampa FL 33614 1,920,000
153 Heritage Estates 600 South Maplewood Drive Rantoul IL 61866 1,830,000
Manufactured Housing
Community
154 Academy Apartments 9115 Academy Road Philadelphia PA 19136 1,827,500
157 Mission Hill Apartments 256 Parker Hill Avenue & Roxbury MA 02120 1,800,000
197 Calumet Street
158 Boston Square Shopping 19600-19654 West 130th Strongsville OH 44136 1,800,000
Center Street
160 Iteq Building 4422 FM-1960 Houston TX 77068 1,790,000
163 Emerald Lake Apartments 1700 Northeast 133rd North Miami FL 33181 1,700,000
Street
166 Eagle's Nest Office 4420 Hotel Circle Court San Diego CA 92108 1,615,000
Building
168 LAKEDALE APARTMENTS (2E) 2921 Kendale Drive Dallas TX 75220 1,035,000
169 LIBERTY APARTMENTS (2E) 2530 Community Drive Dallas TX 75220 525,000
173 Kmart Plaza - Minot One 20th Avenue Southeast Minot ND 58701 1,500,000
174 Villa Del Rio Apartments 5817 Boca Raton Boulevard Fort Worth TX 76112 1,480,000
175 Winchester Arms & Fox 1706 and 3408 Rhawn Philadelphia PA 19136 1,450,000
Street,
Chase Apartments 417-19 Chandler Street,
304-6 Loney Street and
7312-14 Rockwell Street
177 55-65 Merrick Road 55-65 Merrick Road Amityville NY 11701 1,400,000
178 5055 California Avenue 5055 California Avenue Bakersfield CA 93309 1,400,000
180 The Monterey/Sherbrooke
Loan
180a Monterey Apartments 748-768 New Britain Avenue Hartford CT 06106 1,402,000
180b Sherbrooke Apartments 90-118 Sherbrooke Avenue Hartford CT 06106
187 Midway Commercial Building 2470-2512 University St. Paul MN 55114 1,250,000
Avenue West
188 Jersey Street Apartments 136 Jersey Street Waterbury CT 06706 1,240,000
189 Preston Office Park 9741 Preston Road Frisco TX 75034 1,200,000
190 Fairmont Oaks Apartments 4210 Young Street Pasadena TX 77504 1,194,000
191 Premier Plaza Shopping 601 West Parker Road Plano TX 75023
Center 1,170,000
192 4404-4418 Walnut Street 4404-4418 Walnut Street Philadelphia PA 19104 1,150,000
194 Orchard Park Apartments 1327 East 64th Street Tulsa OK 74136 1,110,000
195 Quarry Ridge Apartments 1031 South Brookside Independence MO 64053 1,100,000
197 Plaza Apartments 130, 140 & 150 Southwest Pompano Beach FL 33060 1,050,000
8th Street and 840
Southwest 3rd Avenue
198 Gordon Portfolio
198a Mulberry Court Apartments 4015 Devereaux Street Philadelphia PA 19135 1,050,000
198b 6919 Walker Street 6919 Walker Street Philadelphia PA 19035
198c 5711 Erdrick Street 5711 Erdrick Street Philadelphia PA 19135
200 Park City Plaza 8600 State Road 84 Davie FL 33324 1,023,000
201 Sunny Townhomes 8731 North 30th Street Tampa FL 33604 1,020,000
204 Royal Park Apartments 75 and 100 Southwest 10th Fort Lauderdale FL 33301 948,000
Street and 100 Southwest
9th Street
205 Greensburg Plaza 1807 North Broadway Street Greensburg IN 47240 925,000
206 Wilson Heights Apartments 4908 36th Avenue Kenosha WI 53140 920,000
207 Morello Building 2565 Northwest 1st Avenue Boca Raton FL 33431 783,750
208 Town North Villa Apartments 1805 North Frances Street Terrell TX 75160 732,000
209 Turney Square Apartments 301 West Turney Avenue Phoenix AZ 85013 650,000
210 Lake Street Apartments 2199-2207 South Lake Salt Lake City UT 84106 610,000
Street
211 Atwood & Barker Apartments 22 Atwood Street and 185 Hartford CT 06105 600,000
Barker Street
212 162 Myrtle Avenue 162 Myrtle Avenue Stamford CT 06902 600,000
213 Summit Heights Apartments 3727-3735 Summit Street Kansas City MO 64111 600,000
and
712-722 West 38th Street
214 40 Scitico Road 40 Scitico Road Somers CT 06071 595,000
215 St. John's Office Building 1811 St. Johns Avenue Highland Park IL 60035 520,000
216 Southlake Center 2303-2339 Kirkwood Drive Houston TX 77077 510,000
217 Country Villa Apartments 1099 Lago Vista Boulevard Eastland TX 76448 500,000
218 Coach Light Apartments 2405 East Park Row Drive Arlington TX 76010 500,000
(2C)
(2D)
(2E)
(4)
(5)
(6)
(7)
(8)
(9)
B-1A-2
<PAGE>
<CAPTION>
ORIGINAL REMAINING
CUT-OFF DATE TERM TO TERM TO ORIGINATION REMAINING
--------------------------- MORTGAGE MATURITY MATURITY AMORTIZATION AMORTIZATION
PRINCIPAL MONTHLY INTEREST (MONTHS) (MONTHS) TERM TERM
# BALANCE (4) PAYMENT (5) RATE (6) (6) (MONTHS) (MONTHS)
- ----------- ----------- -------- -------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 $87,301,842 $ 680,877.32 8.630% 120 115 360 355
4 39,491,001 308,576.54 8.640% 120 113 360 353
4a
4b
5 36,936,969 285,810.13 8.550% 120 116 360 356
6 30,282,599 236,623.51 8.640% 120 113 360 353
6a
6b
7 28,387,855 210,968.62 8.130% 120 119 360 359
9 27,441,129 217,522.13 8.810% 120 115 360 355
14 17,094,039 133,184.58 8.640% 120 119 360 359
14a
14b
25 12,151,936 101,443.77 8.900% 120 116 300 296
26 11,609,943 90,542.15 8.640% 120 117 360 357
28 11,555,033 91,991.97 7.410% 60 40 264 244
38 9,736,383 79,153.26 9.100% 120 116 360 356
41 5,547,872 42,321.20 8.410% 120 119 360 359
42 3,798,543 28,976.68 8.410% 120 119 360 359
47 8,409,024 63,103.75 8.000% 90 60 360 330
53 6,743,159 51,328.70 8.380% 120 118 360 358
59 5,734,657 49,321.33 9.270% 120 116 300 296
61 5,679,332 42,822.20 8.250% 120 113 360 353
67 5,486,446 41,706.95 8.350% 120 115 360 355
68 5,223,417 39,870.13 8.390% 120 114 360 354
69 5,186,918 39,175.59 8.280% 120 115 360 355
70 5,146,556 42,690.85 8.850% 120 119 300 299
71 5,117,675 38,791.03 8.330% 120 117 360 357
72 5,015,079 40,649.41 9.060% 120 115 360 355
74 4,966,737 38,162.55 8.420% 120 107 360 347
75 4,915,179 39,734.02 9.030% 120 115 360 355
76 4,909,199 38,635.40 8.730% 120 115 360 355
78 4,493,668 34,219.13 8.380% 120 117 360 357
79 4,488,844 34,060.41 8.330% 120 115 360 355
80 4,194,729 31,975.88 8.380% 120 115 360 355
86 3,994,580 30,756.54 8.500% 120 117 360 357
87 3,993,801 31,668.21 8.820% 120 116 360 356
88 3,893,397 30,639.55 8.750% 111 110 360 359
90 3,795,831 30,062.03 8.800% 120 115 360 355
91 3,795,609 30,520.99 8.980% 120 117 360 357
95 3,689,211 27,927.03 8.300% 120 114 360 354
101 3,198,642 23,815.94 8.150% 120 119 360 359
105 3,123,994 25,932.88 7.680% 180 145 264 229
106 3,118,605 22,915.21 8.010% 120 119 360 359
107 3,110,793 23,973.73 8.510% 120 117 360 357
108 3,108,838 24,044.61 7.690% 120 94 300 274
109 3,098,709 23,180.39 8.200% 120 119 360 359
116 2,718,284 20,663.90 8.350% 120 115 360 355
118 1,556,390 12,061.45 8.560% 120 115 360 355
119 1,117,409 8,659.50 8.560% 120 115 360 355
121 2,606,244 19,799.43 8.350% 120 116 360 356
123 2,543,376 19,014.07 8.170% 120 115 360 355
128 2,435,280 19,757.30 9.080% 120 117 360 357
132 8.440% 120 112 360 352
2,291,190 17,587.30
134 2,261,675 16,515.47 7.920% 120 115 360 355
141 2,099,109 15,629.21 8.150% 120 119 360 359
141a
141b
144 1,962,338 15,109.15 8.500% 120 117 360 357
148 1,916,763 14,872.13 8.580% 120 116 360 356
153 1,827,417 13,902.86 8.370% 120 117 360 357
154 1,824,450 14,194.61 8.610% 120 116 360 356
157 1,797,623 13,942.63 8.580% 120 117 360 357
158 1,797,584 13,878.73 8.530% 120 117 360 357
160 1,786,253 14,248.46 8.880% 120 115 360 355
163 1,697,327 13,410.35 8.780% 120 116 360 356
166 1,612,388 12,647.58 8.700% 120 116 360 356
168 1,034,268 8,431.97 8.640% 120 119 300 299
169 524,629 4,277.09 8.640% 120 119 300 299
173 1,477,856 11,856.84 8.280% 120 104 300 284
174 1,477,748 11,770.24 8.870% 120 116 360 356
175 1,447,605 11,293.43 8.640% 120 116 360 356
177 1,398,250 11,649.58 9.380% 120 116 360 356
178 1,396,974 11,043.82 8.780% 120 115 360 355
180 1,386,387 11,832.81 9.070% 120 106 300 286
180a
180b
187 1,248,833 9,762.42 8.670% 120 118 360 358
188 1,238,715 9,359.33 8.300% 120 118 360 358
189 1,198,928 9,500.46 8.820% 120 118 360 358
190 1,191,735 9,762.24 9.180% 120 115 360 355
191 1,167,848 9,642.26 9.270% 120 115 360 355
192 1,149,012 9,211.82 8.950% 120 118 360 358
194 1,109,611 8,637.42 8.630% 120 119 360 359
195 1,099,578 8,387.99 8.410% 120 119 360 359
197 1,048,302 8,222.89 8.700% 120 116 360 356
198 1,045,877 8,531.78 9.110% 120 111 360 351
198a
198b
198c
200 1,022,042 7,982.28 8.660% 120 118 360 358
201 1,018,666 7,922.57 8.610% 120 117 360 357
204 946,728 7,309.47 8.530% 120 117 360 357
205 923,837 7,263.77 8.730% 120 117 360 357
206 919,178 7,283.69 8.820% 120 118 360 358
207 783,239 6,545.03 8.940% 120 119 300 299
208 731,246 6,048.53 9.300% 120 117 360 357
209 649,039 5,206.68 8.950% 120 116 360 356
210 609,300 4,908.20 9.000% 120 117 360 357
211 599,405 4,596.48 8.460% 120 118 360 358
212 599,255 4,728.78 8.770% 120 117 360 357
213 599,140 4,537.16 8.320% 120 117 360 357
214 594,052 4,928.19 8.840% 120 118 300 298
215 519,815 4,031.56 8.590% 120 119 360 359
216 509,125 4,277.20 9.470% 120 115 360 355
217 499,208 3,937.07 8.760% 120 116 360 356
218 499,042 4,077.19 9.150% 120 115 360 355
</TABLE>
B-1A-3
<PAGE>
<TABLE>
<CAPTION>
INTEREST
CALCULATION
INTEREST FEE SIMPLE/ (30/360 / SERVICING
ONLY ------------------------ ACTUAL/360 / AND
PERIOD DEFEASANCE MORTGAGE ------------ TRUSTEE
# (MONTHS) ARD (7) (8) DEFEASANCE PERIOD (9) LEASEHOLD LOAN SELLER ACTUAL/365) FEES
- -------- ------- --- ----------------------- --------- ----------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 0 Yes L (2), D (7.75), O Leasehold Column Actual/360 0.051700%
(0.25)
4 0 Yes L (2), D (7.5), O (0.5) Column Actual/360 0.051700%
4a Fee Column
4b Fee Column
5 0 7/1/2010 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
6 0 Yes L (2), D (7.5), O (0.5) Column A0.051700%
6a Fee Column
6b Fee Column
7 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
9 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
14 0 Yes L (2), D (7.5), O (0.5) Column Actual/360 0.051700%
14a Fee Column
14b Fee Column
25 0 Yes L (2), D (7.5), O (0.5) Fee/Leasehold Column Actual/360 0.051700%
26 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.151700%
28 0 No N/A Fee/Leasehold Column Actual/360 0.051700%
38 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
41 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
42 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
47 0 No N/A Fee Column Actual/365 0.051700%
53 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
59 0 Yes L (2), D (7.5), O (0.5) Fee/Leasehold Column Actual/360 0.051700%
61 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
67 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
68 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
69 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.121700%
70 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
71 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
72 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
74 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
75 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
76 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
78 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
79 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
80 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
86 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
87 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
88 0 Yes L (2), D (6.75), O (0.5) Fee Column Actual/360 0.051700%
90 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
91 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
95 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
101 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
105 0 Yes L (2), D (12.5), O (0.5) Fee Column Actual/360 0.051700%
106 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
107 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
108 0 No N/A Fee Column A0.051700%
109 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
116 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
118 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
119 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
121 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
123 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
128 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
132 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
134 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
141 0 Yes L (2), D (7.5), O (0.5) Column A0.051700%
141a Fee Column
141b Fee Column
144 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
148 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
153 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
154 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
157 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
158 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
160 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
163 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
166 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
168 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
169 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
173 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
174 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
175 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
177 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
178 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
180 0 Yes L (2), D (7.5), O (0.5) Column A0.051700%
180a Fee Column
180b Fee Column
187 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
188 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
189 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
190 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
191 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
192 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
194 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
195 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
197 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
198 0 Yes L (2), D (7.5), O (0.5) Column Actual/360 0.051700%
198a Fee Column
198b Fee Column
198c Fee Column
200 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
201 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
204 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
205 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
206 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
207 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
208 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
209 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
210 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
211 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
212 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
213 0 Yes L (2), D (7.5), O (0.5) Fee Column 0.051700%0
214 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
215 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
216 0 Yes L (2), D (7.5), O (0.5) Fee Column Actual/360 0.051700%
217 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
218 0 Yes L (2), D (7.5), O (0.5) Fee Column A0.051700%
</TABLE>
B-1A-4
<PAGE>
EXHIBIT B-1B
SCHEDULE OF KEYBANK MORTGAGE LOANS
[SEE ATTACHED SCHEDULE]
B-1B-1
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-CKP1
<TABLE>
<CAPTION>
ORIGINAL
PRINCIPAL
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE
- ------------- ------- ---- ----- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
1 437 Madison Avenue 437 Madison Avenue New York NY 10022 $87,500,000
11 Page Field Commons 5043 South Cleveland Avenue Fort Myers FL 33907 25,400,000
12 POLY FOAM (2A) 1311 Majestic Drive Fremont OH 43420 9,350,000
13 POLY-FOAM INTERNATIONAL, 1411 Majestic Drive Fremont OH 43420 8,550,000
INC. (2A)
15 Sterling University Crescent 4500 Burbank Drive Baton Rouge LA 70820 14,640,000
16 Oakbrook Apartments 5055 Nicholson Drive Baton Rouge LA 70820 14,385,000
19 Chandler Sunset Plaza Northeast Corner of Ray and Chandler AZ 85226 14,000,000
Rural Roads
21 Railway Express Building 900 Second Street, N.E. Washington DC 20002 12,600,000
22 Hillcroft Apartments 10 Clapboard Ridge Road Danbury CT 06811 12,400,000
27 Silverado Ranch Center 9715, 9725, 9775, 9785 Las Vegas NV 89123 11,600,000
S. Maryland Parkway
29 Carlton Village Apartments 3331 Route 94 South Hardyston Township NJ 07419 11,500,000
31 2200 First Avenue South 2200 First Avenue South Seattle WA 98134 10,500,000
36 Westgate Crossing Shopping 660 Spartan Boulevard Spartanburg SC 29301 9,900,000
Center
39 Roseland Shopping Center 3225 Route 364 Canandaigua NY 14424 9,676,000
44 Twelve Oaks Shopping Center 5500 Abercorn Street Savannah GA 31405 9,100,000
45 Streetsboro Market Square 9240-9298 Market Square Streetsboro OH 44241 8,951,000
Drive & 9424 State Route 14
46 Ravenswood Apartments 401 West Pine Avenue Lompoc CA 93436 8,800,000
49 Royal Jetstar Tech Center 4040 Royal Lane Irving TX 75063 8,083,000
52 Sterling University Peaks 2985 E. Aurora Avenue Boulder CO 80303 6,960,000
54 Hartville Center 839-907 West Maple Hartville OH 44632 6,500,000
55 Pony Express Building 2236 Lower Lake Road & 2307 St. Joseph MO 64504 6,485,000
Alabama Street
56 Willow Pond Apartments 6003 Abrams Road Dallas TX 75231 6,450,000
60 Larry's Market 12323 120th Place NE Kirkland WA 98034 5,700,000
64 Royal Freeport Tech Center 4343 Royal Lane Irving TX 75038 5,600,000
65 100 Demarest Drive 100 Demarest Drive Wayne Township NJ 07470 5,550,000
77 Ramblewood Apartments 155 Briarwood Road Fort Collins CO 80521 4,600,000
82 Sunpark Apartments 2205 North Frazier Conroe TX 77301 4,150,000
83 Carol Oaks Apartments 7412 Ederville Road Fort Worth TX 76112 4,120,000
85 Tonawanda Manor 111 Ensminger Road Tonawanda NY 14150 4,072,000
89 Whispering Oaks Mobile Home 315 Barricks Road Brooks KY 40229 3,825,000
Park
92 Holy Cross Professional 2415 Musgrove Road Silver Spring MD 20904 3,800,000
Center
94 Banana Republic 5542 Walnut Street Pittsburgh PA 15232 3,706,000
98 Southtowne Center 10331 and 10317 South Sandy UT 84070 3,460,000
State Street
99 Pinetree Village Apartments 7500 Broadway Denver CO 80221 3,450,000
100 Weston Shoppes 4000 West 106th Street Carmel IN 46032 3,288,000
102 Old County Road 1725 Old County Road San Carlos CA 94070 3,200,000
103 Cambridge Court Retirement 1109 Sixth Avenue North Great Falls MT 59401 3,300,000
Community
110 Star Wholesale Florist, Inc. 8223 Stemmons Freeway Dallas TX 75247 2,985,000
111 Office Depot 41690 Ford Road Canton MI 48187 2,912,000
112 CVS Plaza - East Hartford Main Street & Burnside East Hartford CT 06108 2,859,900
Avenue
113 CVS Plaza - Queensbury 216 Quaker Road Queensbury NY 14203 2,860,000
117 Office Depot at Woodhaven 23420 Allen Road Woodhaven MI 48183 2,700,000
Village Square
122 Eckerd's Drug Store 209 Mount Zoar a/k/a Elmira NY 14904 2,552,000
- S. Main 400-404 South Main Street
125 Eckerd's Drug Store 119 Second Street a/k/a Elmira NY 14901 2,512,000
- N. Main 350 - 368 North Main Street
126 Gentry Plaza 980-1018 Morse Road Columbus OH 43229 2,470,000
130 Eckerd's Drug Store - 479 Broadway Kingston NY 12401 2,400,000
Kingston
131 Pueblo Point Ace Hardware 13811 North Tatum Boulevard Phoenix AZ 85254 2,312,000
133 Eckerd's Drug Store - Half 1483 U.S. Route 9 Halfmoon NY 12065 2,273,000
Moon
135 New England Place Apartments 707-829 West Maple Clawson MI 48017 2,250,000
138 Calder Square, Phase II 1111 West Main Street League City TX 77573 2,145,000
Apartments
140 WEKIVA EXECUTIVE CENTER (3) 1706 East Semoran Boulevard Apopka FL 32703 2,150,000
142 Office Max - Northwood 2802 Curtice Road Northwood OH 43619 2,025,000
143 Office Max - Alexandria 4525 Highway 29 South Alexandria MN 56308 1,997,000
145 Continental Terrace 3315 East Longview Avenue Bloomington IN 47401 1,950,000
Apartments
146 Cheyenne Mountain Center 1650 and 1660 East Cheyenne Colorado CO 80906 1,946,000
Mountain Boulevard Springs
147 Circle K Plaza 4355 East University Drive Mesa AZ 85205 1,921,000
149 Big K Store 431 N.E. 19th Avenue Ruskin FL 33570 1,916,000
150 St. Agnes Apartments 1350 North Meridian Street Indianapolis IN 46202 1,885,000
152 Peconic Mini Storage 345 Flanders Road Flanders NY 11901 1,837,500
155 North By Northeast II 8200 Block East 96th Street Fishers IN 46038 1,810,000
Shoppes
161 Coliseum Self Storage 1121 North Coliseum Fort Wayne IN 46805 1,780,000
Boulevard
162 Centre Square Apartments 2135 Payne Street Las Cruces NM 88001 1,720,000
164 The Sun Prairie Apartments 911 Sun Prairie Drive Houston TX 77090 1,700,000
165 7th Street Grocery 7645 South 700 East Sandy UT 84047 1,660,000
167 New Augusta Shoppes 7111 Georgetown Road Indianapolis IN 46268 1,590,000
170 Sunshine Care Homes 12725-12750 Monte Vista Poway CA 92064 1,579,000
Road
171 1-9 Flatbush Avenue 1-9 Flatbush Avenue Brooklyn NY 11217 1,500,000
172 Pathmark Store No. 550 176-182 West Chelten Avenue Philadelphia PA 19144 1,486,000
176 Old Orchard II Apartments 4330 Keller Road Holt MI 48842 1,430,000
179 Castle Store & Lock 1861 Dixie Highway Hamilton OH 45011 1,400,000
181 Arctic Office Building 3940 Arctic Boulevard Anchorage AK 99503 1,400,000
184 Lansing Square Apartments 11152 East 16th Street Aurora CO 80010 1,360,000
185 CVS #0742-01 90 Garth Road Scarsdale NY 10583 1,340,000
193 Cumberland Technical Center 4311 West Waters Avenue Tampa FL 33614 1,150,000
202 Town & Country Shopping 106 East Parker Street Baxley GA 31513 1,000,000
Center
203 The Majestic Building 7 East Bijou Street Colorado CO 80903 989,000
Springs
208 Goodwill Retail Center 17450 Meinig Avenue Sandy OR 97055 872,000
209 1137 NORTH 13TH STREET 1137 North 13th Street Milwaukee WI 53208 370,000
APARTMENTS (2F)
210 949-969 NORTH 27TH STREET 949-969 North 27th Street Milwaukee WI 53208 330,000
(2F)
211 Summit Plaza 894-896 Summit Street Round Rock TX 78664 665,000
212 Sunnyvale Trailer Park 1360 New Louden Road Latham NY 12110 574,000
213 Woodhaven Village Square 23200 Allen Road Woodhaven MI 48183 556,000
214 4425 South 87th Street 4425 South 87th Street Omaha NE 68127 405,000
215 Cosmos Apartments 1510 Avenue L Plano TX 75074 332,000
216 North Gate Apartments 1323 North Fourth Street Toronto OH 43964 295,000
</TABLE>
(2A) THE UNDERLYING MORTGAGE LOANS SECURED BY POLY FOAM AND POLY-FOAM
INTERNATIONAL, INC. ARE CROSS-COLLATERALIZED AND CROSS-DEFAULTED,
RESPECTIVELY.
(2F) THE UNDERLYING MORTGAGE LOANS SECURED BY 1137 NORTH 13TH STREET APARTMENTS
AND 949-969 NORTH 27TH STREET ARE CROSS-DEFAULTED.
(3) THE UNDERLYING MORTGAGE LOAN SECURED BY WEKIVA EXECUTIVE CENTER FOLLOWS THE
FOLLOWING AMORTIZATION SCHEDULE: PAYMENTS 1-59 ARE BASED ON A 276-MONTH
AMORTIZATION OF PRINCIPAL PAYMENTS 60-120 ARE BASED ON A 350-MONTH
AMORTIZATION OF PRINCIPAL
(4) ASSUMES A CUT-OFF DATE OF NOVEMBER 1, 2000.
(5) IN THE CASE OF LOANS WITH INTEREST ONLY PERIODS, THE MONTHLY PAYMENT
PRESENTED HEREIN REFLECTS THE AMOUNT DUE DURING THE RESPECTIVE AMORTIZATION
TERMS.
(6) IN THE CASE OF THE ARD LOANS, THE ANTICIPATED REPAYMENT DATE IS ASSUMED TO
BE THE MATURITY DATE FOR THE PURPOSES OF THE INDICATED COLUMN.
(7) ANTICIPATED REPAYMENT DATE.
(8) "YES" MEANS THAT DEFEASANCE IS PERMITTED NOTWITHSTANDING THE LOCKOUT
PERIOD.
(9) PREPAYMENT PROVISION AS OF ORIGINATION:
L (X) = LOCKOUT FOR X YEARS
D (X) = DEFEASANCE FOR X YEARS
YM A% (X) = GREATER OF YIELD MAINTENANCE PREMIUM AND A% PREPAYMENT FOR X
YEARS O (X) = PREPAYABLE AT PAR FOR X YEARS
B-1B-2
<PAGE>
<TABLE>
<CAPTION>
ORIGINAL REMAINING
CUT-OFF DATE TERM TO TERM TO ORIGINATION REMAINING
------------------------ MORTGAGE MATURITY MATURITY AMORTIZATION AMORTIZATION
PRINCIPAL MONTHLY INTEREST (MONTHS) (MONTHS) TERM TERM
# BALANCE (4) PAYMENT (5) RATE (6) (6) (MONTHS) (MONTHS)
- ---------- ---------- -------- -------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 25,325,706 191,536.45 8.290% 120 114 360 354
11 9,332,630 70,506.33 8.290% 120 116 360 356
12 8,533,752 64,053.06 8.220% 120 116 360 356
13 14,640,000 109,265.82 8.180% 120 113 360 360
15 14,385,000 111,885.05 8.625% 120 112 360 360
16 13,960,297 106,558.38 8.390% 123 117 360 354
19 12,534,362 99,513.17 8.270% 120 114 300 294
21 12,356,185 93,942.78 8.340% 120 113 360 353
22 11,587,542 86,495.40 8.170% 120 118 360 358
27 11,487,650 85,749.75 8.170% 84 82 360 358
29 10,482,959 82,153.99 8.690% 120 116 360 356
31 9,882,379 75,561.85 8.420% 120 116 360 356
36 9,644,137 74,949.35 8.580% 120 113 360 353
39 9,100,000 67,981.80 8.190% 120 118 360 360
44 8,856,454 66,634.46 8.030% 120 104 344 328
45 8,790,158 64,694.02 8.020% 120 118 360 358
46 8,061,206 62,437.93 8.550% 120 114 360 354
49 6,960,000 51,946.05 8.180% 120 113 360 360
52 6,478,527 51,727.95 8.360% 120 116 300 296
54 6,451,145 51,174.33 8.260% 120 114 300 294
55 6,447,095 47,282.86 7.990% 144 143 360 359
56 5,692,227 43,747.30 8.480% 120 117 360 357
60 5,584,901 43,257.75 8.550% 120 114 360 354
64 5,541,644 41,344.67 8.160% 120 117 360 357
65 4,495,042 33,249.12 7.250% 120 100 300 280
77 4,145,664 31,235.93 8.270% 120 118 360 358
82 4,106,698 30,116.29 7.960% 120 114 360 354
83 4,061,927 32,679.16 8.460% 120 117 300 297
85 3,814,844 29,852.13 8.130% 120 117 300 297
89 3,793,962 29,894.62 8.750% 120 116 360 356
92 3,697,607 28,838.08 8.630% 120 115 360 355
94 3,452,236 26,997.75 8.660% 120 115 360 355
98 3,444,402 26,843.28 8.230% 120 118 312 310
99 3,274,601 26,408.69 8.980% 144 135 360 351
100 3,194,576 25,853.58 8.540% 120 118 300 298
102 3,169,044 24,386.71 7.500% 120 86 300 266
103 2,908,942 25,697.08 8.390% 144 129 240 225
110 2,907,902 22,143.59 8.380% 120 117 360 357
111 2,852,871 22,848.79 8.830% 120 115 346 341
112 2,851,609 21,546.57 8.280% 120 114 360 354
113 2,695,000 20,379.17 8.300% 120 116 360 356
117 2,545,673 19,316.04 8.330% 120 115 360 355
122 2,505,773 19,013.28 8.330% 120 115 360 355
125 2,466,426 18,625.79 8.290% 120 117 360 357
126 2,395,898 18,522.00 8.540% 120 116 360 356
130 2,308,168 18,851.13 8.650% 120 118 300 298
131 2,265,448 17,558.01 8.550% 120 113 360 353
133 2,238,943 16,965.36 7.730% 120 115 300 295
135 2,142,752 16,129.75 8.260% 120 118 360 358
138 2,138,636 17,718.43 8.470% 120 115 276 271
140 1,982,013 17,000.98 8.050% 120 107 240 227
142 1,971,098 17,903.36 8.950% 120 111 240 231
143 1,943,149 14,800.77 8.360% 120 113 360 353
145 1,922,979 15,447.41 8.330% 120 107 300 287
146 1,917,257 15,595.22 9.100% 120 115 360 355
147 1,903,501 16,766.67 9.520% 120 111 300 291
149 1,878,870 15,089.71 8.430% 120 116 300 296
150 1,833,004 14,808.43 8.510% 120 117 300 297
152 1,805,197 14,045.81 8.600% 144 138 360 354
155 1,768,566 15,481.07 8.530% 120 116 240 236
161 1,716,093 13,371.87 8.620% 120 115 360 355
162 1,695,028 12,819.37 8.290% 120 114 360 354
164 1,652,195 13,059.23 8.750% 120 110 360 350
165 1,585,956 12,485.83 8.730% 144 138 360 354
167 1,553,012 12,672.00 8.460% 120 104 300 284
170 1,495,078 11,967.42 8.390% 120 116 300 296
171 1,479,970 12,126.32 8.660% 120 115 300 295
172 1,425,202 11,313.09 8.290% 120 116 300 296
176 1,392,907 11,178.99 8.400% 120 114 300 294
179 1,386,265 11,653.06 8.900% 120 108 300 288
181 1,357,566 10,741.10 8.270% 120 118 300 298
184 1,337,725 10,360.47 8.560% 84 80 360 356
185 1,141,935 9,784.85 9.170% 120 111 300 291
193 996,963 8,207.85 8.730% 120 116 300 296
202 984,234 8,050.52 8.630% 120 114 300 294
203 869,437 7,240.32 8.870% 120 116 300 296
208 369,132 3,029.37 8.700% 120 117 300 297
209 329,226 2,701.87 8.700% 120 117 300 297
210 657,670 5,435.70 8.680% 120 107 300 287
211 572,289 4,742.53 8.810% 120 116 300 296
212 554,393 4,643.11 8.940% 120 116 300 296
213 403,665 3,563.84 9.590% 120 115 300 295
214 330,365 2,680.07 8.530% 120 114 300 294
215 293,528 2,369.46 8.470% 120 114 300 294
216
</TABLE>
B-1B-3
<PAGE>
<TABLE>
<CAPTION>
INTEREST
CALCULATION
INTEREST FEE SIMPLE/ (30/360 / SERVICING
ONLY ----------------------- ACTUAL/360 / AND
PERIOD MORTGAGE ------------ TRUSTEE
# (MONTHS) ARD (7) DEFEASANCE (8) DEFEASANCE PERIOD (9) LEASEHOLD LOAN SELLER ACTUAL/365) FEES
-- -------- ------- -------------- --------------------- --------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
11 0 4/30/2010 No N/A Leasehold KeyBank Actual/360 0.051700%
12 0 Yes L (2.33), D (5.58), Fee KeyBank Actual/360 0.051700%
YM 1% (1.75), O
(0.33)
13 0 Yes L (2.33), D (5.58), Fee KeyBank Actual/360 0.051700%
YM 1% (1.75), O
(0.33)
15 24 Yes L (4.08), D (5.59), Fee KeyBank Actual/360 0.051700%
O (0.33)
16 24 Yes L (4.08), D (5.34), Fee KeyBank Actual/360 0.051700%
O (0.58)
19 0 Yes L (2.5), D (7.5), O Fee KeyBank Actual/360 0.051700%
(0.25)
21 0 Yes L (2.5), D (7.17), O Fee KeyBank Actual/360 0.101700%
(0.33)
22 0 Yes L (4.08), D (5.59), Fee KeyBank Actual/360 0.051700%
O (0.33)
27 0 Yes L (2.17), D (7.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
29 0 Yes L (2.17), D (4.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
31 0 7/1/2010 Yes L (2.33), D (7.34), Fee KeyBank Actual/360 0.051700%
O (0.33)
36 0 7/1/2010 Yes L (2.33), D (7.34), Fee KeyBank Actual/360 0.051700%
O (0.33)
39 0 4/1/2010 No N/A Fee KeyBank Actual/360 0.051700%
44 12 9/1/2010 Yes L (2.17), D (7.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
45 0 Yes L (3.33), D (6.42), Fee KeyBank Actual/360 0.051700%
O (0.25)
46 0 Yes L (2.17), D (7.5), O Fee KeyBank Actual/360 0.051700%
(0.33)
49 0 Yes L (2.5), D (7.17), O Fee KeyBank Actual/360 0.051700%
(0.33)
52 24 Yes L (4.08), D (5.59), Fee KeyBank Actual/360 0.051700%
O (0.33)
54 0 Yes L (2.33), D (7.34), Fee KeyBank Actual/360 0.051700%
O (0.33)
55 0 Yes L (2.5), D (7.17), O Fee KeyBank Actual/360 0.101700%
(0.33)
56 0 Yes L (2.08), D (9.59), Fee KeyBank Actual/360 0.051700%
O (0.33)
60 0 8/1/2010 Yes L (2.25), D (7.5), O Fee KeyBank Actual/360 0.101700%
(0.25)
64 0 Yes L (2.5), D (7.17), O Fee KeyBank Actual/360 0.051700%
(0.33)
65 0 No N/A Fee KeyBank Actual/360 0.051700%
77 0 2/28/2009 No N/A Fee KeyBank Actual/360 0.051700%
82 0 Yes L (2.17), D (7.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
83 0 No N/A Fee KeyBank Actual/360 0.051700%
85 0 Yes L (2.25), D (7.42), Fee KeyBank Actual/360 0.051700%
O (0.33)
89 0 Yes L (2.25), D (7.5), O Fee KeyBank Actual/360 0.051700%
(0.25)
92 0 Yes L (2.33), D (7.42), Fee KeyBank Actual/360 0.071700%
O (0.25)
94 0 Yes L (2.42), D (7.25), Fee KeyBank Actual/360 0.051700%
O (0.33)
98 0 Yes L (2,42(, D (7.25), Leasehold KeyBank Actual/360 0.051700%
O (0.33)
99 0 No N/A Fee KeyBank Actual/360 0.051700%
100 0 Yes L (2.75), D (9), O Fee KeyBank Actual/360 0.051700%
(0.25)
102 0 9/1/2010 Yes L (2.17), D (7.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
103 0 No N/A Fee KeyBank Actual/360 0.051700%
110 0 Yes L (3.25), D (8.5), O Fee KeyBank 30/360 0.051700%
(0.25)
111 0 8/1/2010 Yes L (2.25), D (7.42), Fee KeyBank Actual/360 0.051700%
O (0.33)
112 0 No N/A Fee KeyBank Actual/360 0.051700%
113 0 No N/A Fee KeyBank Actual/360 0.051700%
117 0 Yes L (2.33), D (7.34), Fee KeyBank Actual/360 0.051700%
O (0.33)
122 0 6/1/2010 Yes L(2.42), D (7.25), O Fee KeyBank Actual/360 0.051700%
(0.33)
125 0 6/1/2010 Yes L(2.42), D (7.25), O Fee KeyBank Actual/360 0.051700%
(0.33)
126 0 8/1/2010 Yes L (2.25), D (7.42), Fee KeyBank Actual/360 0.051700%
O (0.33)
130 0 7/1/2010 Yes L (2.33), D (7.34), Fee KeyBank Actual/360 0.051700%
O (0.33)
131 0 Yes L (2.17), D (7.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
133 0 Yes L(2.58), D (7.09), O Fee KeyBank Actual/360 0.051700%
(0.33)
135 0 Yes L (2.42), D (7.33), Fee KeyBank Actual/360 0.051700%
O (0.25)
138 0 Yes L (2.17), D (7.58), Fee KeyBank Actual/360 0.051700%
O (0.25)
140 0 No N/A Fee KeyBank Actual/360 0.051700%
142 0 10/1/2009 No N/A Fee KeyBank Actual/360 0.101700%
143 0 2/1/2010 No N/A Fee KeyBank Actual/360 0.101700%
145 0 No N/A Fee KeyBank Actual/360 0.051700%
146 0 Yes L (3.08), D (6.59), Fee KeyBank Actual/360 0.051700%
O (0.33)
147 0 Yes L (2.42), D (7.33), Fee KeyBank Actual/360 0.101700%
O (0.25)
149 0 2/1/2010 No N/A Fee KeyBank Actual/360 0.051700%
150 0 No N/A Fee KeyBank Actual/360 0.051700%
152 0 Yes L (2.25), D (7.42), Fee KeyBank Actual/360 0.051700%
O (0.33)
155 0 Yes L (2.5), D (9.17), O Fee KeyBank Actual/360 0.051700%
(0.33)
161 0 No N/A Fee KeyBank 30/360 0.051700%
162 0 No N/A Fee KeyBank Actual/360 0.051700%
164 0 Yes L (2.5), D (7.17), O Fee KeyBank Actual/360 0.051700%
(0.33)
165 0 Yes L (2.83), D (6.84), Fee KeyBank Actual/360 0.051700%
O (0.33)
167 0 Yes L (2.5), D (9.17), O Fee KeyBank Actual/360 0.051700%
(0.33)
170 0 Yes L (3.33), D (6.42), Fee KeyBank 30/360 0.051700%
O (0.25)
171 0 No N/A Fee KeyBank Actual/360 0.051700%
172 0 6/1/2010 Yes L (2.42), D (7.33), Fee KeyBank Actual/360 0.051700%
O (0.25)
176 0 No N/A Fee KeyBank Actual/360 0.051700%
179 0 Yes L (2.5), D (7.17), O Fee KeyBank Actual/360 0.051700%
(0.33)
181 0 No N/A Fee KeyBank Actual/360 0.051700%
184 0 No N/A Fee KeyBank Actual/360 0.051700%
185 0 No N/A Fee KeyBank Actual/360 0.051700%
193 0 Yes L (2.75), D (6.92), Fee KeyBank Actual/360 0.051700%
O (0.33)
202 0 No N/A Fee KeyBank Actual/360 0.051700%
203 0 No N/A Fee KeyBank Actual/360 0.051700%
208 0 No N/A Fee KeyBank Actual/360 0.051700%
209 0 No N/A Fee KeyBank Actual/360 0.051700%
210 0 No N/A Fee KeyBank Actual/360 0.051700%
211 0 No N/A Fee KeyBank Actual/360 0.051700%
212 0 No N/A Fee KeyBank Actual/360 0.051700%
213 0 No N/A Fee KeyBank Actual/360 0.051700%
214 0 No N/A Fee KeyBank Actual/360 0.051700%
215 0 No N/A Fee KeyBank Actual/360 0.051700%
216 0 No N/A Fee KeyBank Actual/360 0.051700%
</TABLE>
B-1B-4
<PAGE>
EXHIBIT B-1C
SCHEDULE OF PMCF MORTGAGE LOANS
[SEE ATTACHED SCHEDULE]
B-1C-1
<PAGE>
<TABLE>
<CAPTION>
B-1C-3
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-CKP1
ORIGINAL
PRINCIPAL
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE
--- ------------- ------- ---- ----- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
2 Valencia Marketplace, Power 25420-25710 The Old Road Valencia CA 91381 51,980,517
Center
3 HERCULES PLAZA (1) 1313 North Market Street Wilmington DE 19801 51,010,324
8 Gateway at Randolph Apartments 44 Center Grove Road Randolph NJ 07869 28,000,000
Township
10 Palm Plaza Shopping Center 26479 Ynez Road Temecula CA 92591 25,762,500
17 One Bulfinch Place One Bulfinch Place Boston MA 02114 14,500,000
18 Sandhurst Apartments 30582 Sandhurst Drive Roseville MI 48066 14,000,000
20 Saddle Brook Apartments 49 Finnigan Avenue Saddle Brook NJ 07663 13,000,000
Township
23 RADISSON INN HARBOURWALK (2B) 223 Gaslight Circle Racine WI 53403 6,900,000
24 RADISSON SUITE HOTEL (2B) 404 W. St. Germain St. Cloud MN 56301 5,350,000
30 Glenridge Apartments 4770 Nightingale Drive Colorado CO 80918 10,500,000
Springs
32 Windmill Apartments 4165 Lacy Lane Colorado CO 80916 10,453,000
Springs
33 Kent Hill Plaza 25610-26004 104th Avenue, SE Kent WA 98031 10,300,000
34 Cheyenne Crest Apartments 4008 Westmeadow Drive Colorado CO 80906 10,237,000
Springs
35 Big Kmart - Midwest City 5701 East Reno Avenue Midwest City OK 73110 10,000,000
37 Big Kmart - Edmond 2501 South Broadway Edmond OK 73013 9,790,000
40 Big Kmart - Chicago 1710 North Kostner Avenue Chicago IL 60639 9,540,000
43 DoubleTree Hotel 1230 Congress Street Portland ME 04102 9,200,000
48 Candlewood Hotel - Sacramento 555 Howe Avenue Sacramento CA 95825 8,415,000
50 North Reading Plaza 72 Main Street North Reading MA 01867 7,400,000
51 Cypress Springs Apartments 210 Welcome Way Fern Park FL 32730 7,300,000
57 Standard Dairy Apartments 2808 Northeast Martin Luther Portland OR 97212 6,260,000
King Jr. Boulevard
58 Edward's Office Portfolio 6,000,000
58a 200 Newport Center Drive 200 Newport Center Drive Newport Beach CA 92660
58b 359 San Miguel Drive 359 San Miguel Drive Newport Beach CA 92660
58c 363 San Miguel Drive 363 San Miguel Drive Newport Beach CA 92660
62 Granite Retail Portfolio 5,640,000
62a Campbell Park Shopping Center 3443 W. Campbell Road (Big Garland TX 75042
Spring Road)
62b Frankford Crest Shopping Center 6911 Frankford Road Dallas TX 75225
62c Midway Village Shopping Center 19021 Midway Road Dallas TX 75287
62d Campbell Square Shopping Center 955 East Campbell Road Richardson TX 75081
63 Walnut Creek Apartments 11411 Green Plaza Drive Houston TX 77038 5,600,000
66 Indian Run Village 1 Lenape Way Honey Brook PA 19344 5,500,000
73 6329 Glenwood Office Building 6329 Glenwood Avenue Overland Park KS 66202 5,000,000
81 The Shops at Fair Lakes 12701-12735 Shoppes Lane Fairfax VA 22033 4,200,000
84 Florida Computer Center 7841-7919 Pines Boulevard Pembroke Pines FL 33024 4,100,000
93 Augusta Plaza Shopping Center 48-54 Western Avenue Augusta ME 04330 3,790,000
96 West Marietta Retail Center Dallas Highway & Villa Rica Marietta GA 30064 3,650,000
Road
97 Regency Centre Office Complex 8202 Clearvista Parkway Indianapolis IN 46256 3,500,000
104 Bryn Mawr Suites Apartments 5100 Lebanon Avenue Philadelphia PA 19131 3,150,000
114 Warehouse X/Lock-It Lockers 1560 Frazee Road San Diego CA 92108 2,800,000
115 Lazy Acres Estates 5510 Stettin Drive Wausau WI 54401 2,755,000
120 Northway Plaza Shopping Center 5300 - 5348 Dixie Highway Waterford MI 48329 2,675,000
Township
124 Middlefield Market Square 15401-15439 West High Street Middlefield OH 44062 2,550,000
Shopping Center
127 The Meadows Apartments 341 Stelton Road Xenia OH 45385 2,450,000
129 Colony Square Apartments 3020 Colquitt Road Shreveport LA 71118 2,400,000
136 1025 East Maple Office Building 1025 East Maple Road Birmingham MI 48009 2,175,000
137 Jaffe Eye Office Building 18999 Biscayne Boulevard Aventura FL 33180 2,150,000
139 North Mall 68-100 Old Riverhead Road Westhampton NY 11978 2,150,000
Beach
151 Richfield Court Apartments 3281 Richfield Road Flint MI 48506 1,845,000
156 Warehouse II/Lock-It Lockers 3636 East Washington Street Phoenix AZ 85034 1,809,000
159 Gaithersburg Shopping Center 841-861 Russell Avenue Gaithersburg MD 20879 1,800,000
182 Lockheed Martin Building 2717 Airport Drive Harlingen TX 78550 1,370,000
183 Renton Highlands Center 1190 Sunset Boulevard NE Renton WA 98056 1,360,000
186 Pinewood Village Apartments 1258 Sunset Boulevard Jesup GA 31545 1,257,500
196 STONEY CREEK APARTMENTS (4) 410 East Hinckley Avenue Ridley Park PA 19078 1,100,000
Borough
199 Warehouse I/Lock-It Lockers 1135 West Broadway Road Tempe AZ 85282 1,045,000
207 Northway Court Shopping Center 1501 Northway Drive St. Cloud MN 56303 875,000
209 Warehouse IV/Lock-It Lockers 2825 North 1st Avenue Tucson AZ 85719 855,000
210 Warehouse IX/Lock-It Lockers 4115 East Speedway Boulevard Tucson AZ 85712 820,000
<CAPTION>
ORIGINAL REMAINING ORIGINATION
CUT-OFF-DATE TERM TO TERM TO AMORTIZED REMAINING INTEREST
----------------------- MORTGAGE MATURITY MATURITY ON AMORTIZATION ONLY
PRINCIPAL MONTHLY INTEREST MONTHS MONTHS TERM TERM PERIOD
# BALANCE(4) PAYMENT(5) RATE (6) (6) (MONTHS) (MONTHS) (MONTHS) ARD(7)
--- --------- --------- -------- -------- -------- ----------- ------------ -------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 51,787,099 361,534.76 7.240% 156 152 336 332 0 7/1/2013
3 50,909,381 390,426.55 6.810% 152 151 152 151 0
8 27,870,175 216,479.64 8.020% 120 115 300 295 0
10 25,476,217 181,371.61 7.570% 120 103 360 343 0 6/1/2009
17 14,383,000 112,212.51 8.380% 120 116 334 334 30 7/1/2010
18 13,971,656 102,922.30 8.020% 120 116 360 356 0
20 12,939,724 100,508.41 8.020% 120 115 300 295 0
23 6,888,821 56,774.80 8.760% 120 118 300 298 0
24 5,341,332 44,021.04 8.760% 120 118 300 298 0
30 10,488,631 78,072.50 8.140% 120 118 360 358 0
32 10,437,167 77,723.03 8.140% 120 117 360 357 0
33 10,287,425 79,052.14 8.480% 120 118 360 358 0
34 10,221,494 76,116.97 8.140% 120 117 360 357 0
35 9,984,394 73,655.50 8.040% 120 117 360 357 0 8/1/2010
37 9,770,974 72,861.89 8.150% 120 116 360 356 0 7/1/2010
40 9,521,460 71,001.27 8.150% 120 116 360 356 0 7/1/2010
43 9,154,171 73,560.83 8.416% 120 115 300 295 0
48 8,401,451 69,412.22 8.790% 120 118 300 298 0
50 7,380,723 55,126.22 8.160% 120 115 360 355 0 6/1/2010
51 7,300,000 56,676.05 8.430% 120 114 336 336 24 5/1/2010
57 6,250,949 48,367.53 8.270% 120 118 324 322 0
58 5,991,636 45,752.65 8.410% 120 117 360 357 0 8/1/10
58a
58b
58c
62 5,633,625 41,305.71 7.980% 120 118 360 358 0
62a
62b
62c
62d
63 5,591,998 42,367.32 8.090% 120 118 330 328 0
66 5,500,000 42,329.23 8.510% 120 116 360 360 12
73 4,988,040 38,268.64 8.450% 120 115 360 355 0 6/1/2010
81 4,187,640 31,612.27 8.270% 120 114 360 354 0 5/1/2010
84 4,089,866 31,061.72 8.340% 120 115 360 355 0 6/1/2010
93 3,769,547 28,322.18 8.190% 120 110 360 350 0 1/1/2010
96 3,631,507 29,145.23 8.400% 120 114 300 294 0 5/1/2010
97 3,495,482 27,284.92 8.650% 120 117 360 357 0
104 3,141,216 22,938.15 7.920% 120 115 360 355 0 6/1/2010
114 2,793,488 23,001.00 8.740% 120 117 300 297 0
115 2,755,000 21,047.04 8.430% 120 116 360 360 12
120 2,659,332 22,977.79 8.360% 120 116 240 236 0
124 2,543,014 19,607.29 8.500% 120 114 360 354 0
127 2,447,454 18,474.97 8.290% 120 118 360 358 0
129 2,396,728 20,797.39 8.480% 240 239 240 239 0
136 2,166,473 17,985.18 8.820% 240 235 300 295 0
137 2,150,000 16,655.95 8.300% 120 115 324 324 36 6/1/2010
139 2,140,954 17,297.90 8.490% 120 115 300 295 0
151 1,833,914 13,731.38 8.150% 120 109 360 349 0 12/1/2009
156 1,805,034 9.000% 120 117 300 297 0
15,181.06
159 1,795,202 13,308.29 8.080% 120 115 360 355 0 6/1/2010
182 1,368,517 10,186.60 8.140% 120 118 360 358 0
183 1,357,940 11,487.67 9.080% 120 118 300 298 0
186 1,252,888 9,411.84 8.210% 120 113 360 353 0 4/1/2010
196 1,098,780 8,109.79 8.050% 120 118 360 358 0
199 1,042,570 8,584.30 8.740% 120 117 300 297 0
207 874,174 6,808.77 8.630% 120 118 360 358 0
209 853,012 7,023.52 8.740% 120 117 300 297 0
210 818,093 6,736.01 8.740% 120 117 300 297 0
<CAPTION>
FEE SIMPLE INTEREST
--------------------- CALCULATION SERVICING
MORTGAGE (30/360/ AND
LOAN ACUTAL/360 TRUSTEE
# DEFEASANCE(8) DEFEASANCE PERIOD (9) LEASEHOLD SELLER ACTUAL/365) FEES
--- ------------- --------------------- --------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
2 Yes L (3.83), D (8.58), O Fee PMCF 30/360 0.059212%
(0.58)
3 No N/A Leasehold PMCF 30/360 0.051700%
8 Yes L (3), D (6.58), O (0.42) Fee PMCF Actual/360 0.071700%
10 Yes L (3.42), D (6), O (0.58) Fee PMCF Actual/360 0.051700%
17 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
18 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.101700%
20 Yes L (3), D (6.58), O (0.42) Fee PMCF Actual/360 0.071700%
23 Yes L (2.25), D (7.42), O Fee PMCF Actual/360 0.051700%
(0.33)
24 Yes L (2.25), D (7.42), O Fee PMCF Actual/360 0.051700%
(0.33)
30 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
32 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
33 Yes L (4), D (5.67), O (0.33) Fee PMCF 30/360 0.076700%
34 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
35 Yes L (2.33), D (7.08), O Fee PMCF Actual/360 0.051700%
(0.58)
37 Yes L (2.42), D (7), O (0.58) Fee PMCF Actual/360 0.051700%
40 Yes L (2.42), D (7), O (0.58) Fee PMCF Actual/360 0.051700%
43 Yes L (4), D (5.67), O (0.33) Fee PMCF 30/360 0.051700%
48 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.101700%
50 Yes L (4.5), D (5.17), O Fee PMCF Actual/360 0.101700%
(0.33)
51 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
57 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
58 Yes L (4), D (5.67), O (0.33) PMCF Actual/360 0.101700%
58a Fee PMCF
58b Fee PMCF
58c Fee PMCF
62 Yes L (4), D (5.67), O (0.33) PMCF Actual/360 0.051700%
62a Fee PMCF
62b Fee PMCF
62c Fee PMCF
62d Fee PMCF
63 Yes L (2.25), D (7.17), O Fee PMCF Actual/360 0.051700%
(0.58)
66 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
73 Yes L (4), D (5.58), O (0.42) Fee PMCF Actual/360 0.051700%
81 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
84 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
93 Yes L (4.92), D (4.75), O Fee PMCF Actual/360 0.051700%
(0.33)
96 Yes L (4.58), D (5.08), O Fee PMCF Actual/360 0.051700%
(0.33)
97 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
104 No N/A Fee PMCF Actual/360 0.101700%
114 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
115 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
120 Yes L (3), D (6.67), O (0.33) Fee PMCF Actual/360 0.101700%
124 Yes L (3.92), D (5.75), O Fee PMCF Actual/360 0.101700%
(0.33)
127 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
129 No N/A Fee PMCF Actual/360 0.051700%
136 Yes L (4), D (15.67), O Fee PMCF Actual/360 0.101700%
(0.33)
137 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.051700%
139 Yes L (4.5), D (4.92), O Fee PMCF Actual/360 0.051700%
(0.58)
151 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
156 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
159 Yes L (2.5), D (7.17), O Fee PMCF Actual/360 0.101700%
(0.33)
182 Yes L (4), D (5.42), O (0.58) Leasehold PMCF Actual/360 0.051700%
183 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
186 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.051700%
196 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.101700%
199 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
207 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
209 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
210 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
(1) THE UNDERLYING MORTGAGE LOAN SECURED BY HERCULES PLAZA FOLLOWS THE FOLLOWING AMORTIZATION SCHEDULE:
PAYMENTS 1-92 ARE BASED ON A 239-MONTH AMORTIZATION OF PRINCIPAL
PAYMENTS 93-152 ARE BASED ON A 60-MONTH AMORTIZATION OF PRINCIPAL
(2B) THE UNDERLYING MORTGAGE LOANS SECURED BY RADISSON INN HARBOURWALK AND RADISSON SUITE HOTEL ARE CROSS-COLLATERALIZED AND
CROSS-DEFAULTED, RESPECTIVELY.
(4) ASSUMES A CUT-OFF DATE OF NOVEMBER 1, 2000.
(5) IN THE CASE OF LOANS WITH INTEREST ONLY PERIODS, THE MONTHLY PAYMENT PRESENTED HEREIN REFLECTS THE AMOUNT DUE DURING THE
RESPECTIVE AMORTIZATION TERMS.
(6) IN THE CASE OF THE ARD LOANS, THE ANTICIPATED REPAYMENT DATE IS ASSUMED TO BE THE MATURITY DATE FOR THE PURPOSES OF THE
INDICATED COLUMN.
(7) ANTICIPATED REPAYMENT DATE.
(8) "YES" MEANS THAT DEFEASANCE IS PERMITTED NOTWITHSTANDING THE LOCKOUT PERIOD.
(9) PREPAYMENT PROVISION AS OF ORIGINATION:
L (X) = LOCKOUT FOR X YEARS
D (X) = DEFEASANCE FOR X YEARS
YM A% (X) = GREATER OF YIELD MAINTENANCE PREMIUM AND A% PREPAYMENT FOR X
YEARS O (X) = PREPAYABLE AT PAR FOR X YEARS
B-1C-2
</TABLE>
<PAGE>
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
- NONE -
B-2-1
<PAGE>
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[DATE]
DLJ Commercial Mortgage Corp. Midland Loan Services, Inc.
11 Madison Avenue 210 West 10th Street, 6th Floor
New York, New York 10010 Kansas City, Missouri 64105
Key Corporate Capital Inc. KeyBank National Association
d/b/a Key Commercial Mortgage 127 Public Square
911 Main Street, Suite 1500 Cleveland, Ohio 44114
Kansas City, Missouri 64105
Prudential Mortgage Capital Funding, LLC Column Financial, Inc.
100 Mulberry Street 3414 Peachtree Road, N.E.
Gateway Center 4, 8th Floor Suite 1140
Newark, New Jersey 07102 Atlanta, Georgia 30326-1113
Re: DLJ Commercial Mortgage Corp, Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated as
of November 1, 2000 and related to the above-referenced Certificates (the
"Agreement"), Wells Fargo Bank Minnesota, N.A. as trustee (the "Trustee"),
hereby certifies as to each Original Mortgage Loan subject to the Agreement
(except as identified in the exception report attached hereto) that: (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a lost note affidavit certifying that the original of such
Mortgage Note has been lost), the original or copy of documents specified in
clauses (ii) through (v) and (vii) of the definition of "Mortgage File" and the
documents specified in clause (viii) of the definition of "Mortgage File"
(without regard to the parenthetical), have been received by it or a Custodian
on its behalf; (ii) if such report is due more than 180 days after the Closing
Date, the recordation/filing contemplated by Section 2.01(e) has been completed
(based solely on receipt by the Trustee of the particular recorded/filed
documents); (iii) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan; and (iv) based on the examinations referred to in Section 2.02(a) and
Section 2.02(b) and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (ii) (other than the zip
B-3-1
<PAGE>
code) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the related Mortgage File.
Pursuant to Section 2.02(c) of the Agreement, neither the Trustee nor the
Custodian is under any obligation to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, binding, enforceable, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Furthermore, neither the Trustee nor the Custodian shall have any responsibility
for determining whether the text of any assignment or endorsement is in proper
or recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
By:___________________________________
Name:
Title:
B-3-2
<PAGE>
EXHIBIT C
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITARY
[See Attached Letters]
C-1
<PAGE>
[LOGO]
--------------------------------------------------------------------------------
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)--
WITHOUT OWNER OPTION TO REDEEM/PASS-THROUGH SECURITIES/
AND ASSET-BACKED SECURITIES
--------------------------------------------------------------------------------
Letter of Representations
[To be Completed by Issuer and Agent]
DLJ COMMERCIAL MORTGAGE CORP.
-------------------------------------------------
[Name of Issuer]
WELLS FARGO BANK MINNESOTA, N.A.
-------------------------------------------------
[Name of Agent]
NOVEMBER 6, 2000
----------------
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street 49th Floor
New York, NY 10041-0099
Re: DLJ COMMERCIAL MORTGAGE CORP. COMMERCIAL MORTGAGE PASS-THROUGH
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CERTIFICATES, SERIES 2000-CKP1, A-1A, A-1B, A-2, A-3, A-4, B-1, B-2,
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B-3
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[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated Nov. 1, 2000 (the "Document")*.
___________________________________
["Underwiter/Placement Agent"]
* Donaldon, Lufkin & Jenrette Securities Corporation, Prudential Securities
Incorporated, Credit Suisse First Boston Corporation, McDonald Investments
Inc., Salomon Smith Barney Inc.
<PAGE>
are distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on November 2000, there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate principal
amount of any maturity exceeds $400 million, one certificate shall be issued
with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Issuer represents: [Note: Issuer must represent one of the following, and
shall cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or cancel
the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by Participant through the DWAC system to decrease the
Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
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<PAGE>
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC no fewer than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a rebinding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(eg., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSEP number submitted in that transmission. (The
party sending such notice shall have a method to verify subsequently the use of
such means and the timeliness of such notice.) The Publication Date shall be no
fewer than 30 days nor more than 60 days prior to the redemption date or, in the
case of an advance refunding, the date that the proceeds are deposited in
escrow. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (516)
227-4070. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to:
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<PAGE>
Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession
no later than the close of business on the business day before or, if possible,
two business days before the Publication Date. Issuer or Agent shall forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission for multiple CUSIP numbers (if applicable) which includes
a manifest or list of each CUSIP number submitted in that transmission. (The
party sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (212) 855-5488. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5290. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time have the
right to tender the Securities to Issuer and require that Issuer repurchase such
holders' Securities pursuant to the Document and Cede & Co., as nominee of DTC,
or its registered assigns, as the record owner, is entitled to tender the
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during the
applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business two business days
before the Publication Date. The Publication Date shall be no fewer than 15 days
prior to the expiration date of the applicable tender period. Such notice shall
state whether any partial redemption of the Securities is scheduled to occur
during the applicable optional tender
-4-
<PAGE>
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $ 1,000 original face value (or other minimum authorized denomination
if less than $ 1,000 face value) payable on each payment date allocated as to
the interest and principal portions thereof preferably five, but no fewer than
two, business days prior to such payment date* Such notices, which shall also
contain the current pool factor, any special adjustments to principal/interest
rates (e.g., adjustments due to deferred interest or shortfall), and Agent
contact's name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 855-4555, and receipt of such notices shall be confirmed by
telephoning (212) 855-4550. Notices to DTC, pursuant to this Paragraph, by mail
or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents: [NOTE: Issuer must represent one of the following,
and shall cross out the other.] [The interest accrual period is record date
to record date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4550. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
* (or such other arrangement as may be agreed upon by DTC and the agent.)
-5-
<PAGE>
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later than
12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such maturity and redemption payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Redemption Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such reorganization payments due Agent, or at such earlier time as required by
Agent to guarantee that DTC shall receive payment in same-day funds no later
than 2:30 p.m. (Eastern Time) on the payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired to the Reorganization
Deposit Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (212) 855-4777. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
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<PAGE>
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC win confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter of
Representations is responsible for confirming that such notice was properly
received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and shall
not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time:
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any self-
regulatory organizations (as defined under the Securities Exchange Act of 1934);
or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLS") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLS. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
-7-
<PAGE>
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLS shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLS, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "www.DTC.org."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
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<PAGE>
Notes:
A. If there is an Agent (as defined
in this Letter of Representations),
Agent as well as Issuer must sign
this Letter. If there is no Agent,
in signing this Letter Issuer
itself undertakes to perform all of
the obligations set forth herein.
B. Schedule B contains statements
that DTC believes accurately
describe DTC, the method of
effecting book-entry transfers of
securities distributed through DTC,
and certain related matters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
-------------------------------------------
[Issuer]
By: /s/
----------------------------------------
[Authorized Officer's Signature]
WELLS FARGO BANK MINNESOTA, N.A.
-------------------------------------------
[Agent]
By: /s/
----------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/
-------------------------------
Funds should be wired to:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
[Select Appropriate Account.]
Dividend Deposit Account # 066-026776
Redemption Deposit Account # 066-027306
Reorganization Deposit Account # 066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
<PAGE>
SCHEDULE A
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-----------------------------------------------------------
[Describe Issue, Including Issuer's Name]
CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ---------------- ------------- -------------
[SEE ATTACHED]
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<PAGE>
SCHEDULE A
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 2000-CKP1
Certificates CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ------------- ------------------- ------------- -------------
A-1A-1 23322B MY 1 $210,310,000 8/09 6.9300%
A-1B-1 23322B MZ 8 $400,000,000 8/10 7.1800%
A-1B-2 23322B MZ 8 $389,377,000 8/10 7.1800%
A-2-1 23322B NA 2 $ 5l,596,000 9/10 7.3500%
A-3-1 23322B NB 0 $ 58,047,000 9/10 7.5000%
A-4-1 23322B NC 8 $ 16,124,000 9/10 7.6000%
B-1-1 23322B ND 6 $ 16,124,000 10/10 7.9500%
B-2-1 23322B NE 4 $ 25,798,000 10/10 8.0000%
B-3-1 23322B NF 1 $ 12,899,000 10/10 8.2380%
<PAGE>
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Direct and Indirect Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
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<PAGE>
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
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<PAGE>
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
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<PAGE>
[LOGO]
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BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)--
WITHOUT OWNER OPTION TO REDEEM/PASS-THROUGH SECURITIES/
AND ASSET-BACKED SECURITIES
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Letter of Representations
[To be Completed by Issuer and Agent]
DLJ COMMERCIAL MORTGAGE CORP.
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[Name of Issuer]
WELLS FARGO BANK MINNESOTA, N.A.
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[Name of Agent]
NOVEMBER 6, 2000
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[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street 49th Floor
New York, NY 10041-0099
Re: DLJ COMMERCIAL MORTGAGE CORP. COMMERCIAL MORTGAGE PASS-THROUGH
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CERTIFICATES, SERIES 2000-CKP1, CLASS S
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[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated NOV. 1, 2000 (the "Document").*
______________________________________
["Underwriter/Placement Agent"]
* Donaldson, Lufkin & Jenrette Securities Corporation, Prudential Securities
Incorporated
<PAGE>
is distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on November 2000 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate principal
amount of any maturity exceeds $400 million, one certificate shall be issued
with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to
Issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in
such other name as is requested by an authorized
representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is
requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
Issuer represents: [Note. Issuer must represent one of the following, and shall
cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or cancel
the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by Participant through the DWAC system to decrease the
Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
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Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate (s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC no fewer than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(eg., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC"s possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be no fewer
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to DTC's
Call Notification Department at (516) 227- 4164 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516) 227-4070. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
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Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (eg., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the-Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (212) 855-5488. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5290. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time have the
right to tender the Securities to Issuer and require that Issuer repurchase such
holders" Securities pursuant to the Document and Cede & Co., as nominee of DTC,
or its registered assigns, as the record owner, is entitled to tender the
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during the
applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business two business days
before the Publication Date. The Publication Date shall be no fewer than 15 days
prior to the expiration date of the applicable tender period. Such notice shall
state whether any partial redemption of the Securities is scheduled to occur
during the applicable optional tender
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period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. If the parry sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably five, but no fewer than two,
business days prior to such payment date" *Such notices, which shall also
contain the current pool factor, any special adjustments to principal/interest
rates (e.g., adjustments due to deferred interest or shortfall), and Agent
contact's name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 855-4555, and receipt of such notices shall be confirmed by
telephoning (212) 855-4550. Notices to DTC, pursuant to this Paragraph, by mail
or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents: [NOTE: Issuer must represent one of the following,
and shall cross out the other.] [The interest accrual period is record date to
record date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4550. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
* (or such other arrangement as may be agreed upon by DTC and the Agent.)
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11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later than
12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such maturity and redemption payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Redemption Deposit Account number that win be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such reorganization payments due Agent, or at such earlier time as required by
Agent to guarantee that DTC shall receive payment in same-day funds no later
than 2:30 p.m. (Eastern Time) on the payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired to the Reorganization
Deposit Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (212) 855- 4777. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
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<PAGE>
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will conform with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter of
Representations is responsible for confirming that such notice was properly
received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and shall
not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time:
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any self-
regulatory organizations (as defined under the Securities Exchange Act of 1934);
or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLS. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
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<PAGE>
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLS, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "www.DTC.org."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
REPRESENTATIONS FOR RULE 144A SECURITIES
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NOTES:
A. If there is an Agent (as defined
in this Letter of Representations),
Agent as well as Issuer must sign
this Letter. If there is no Agent,
in signing this Letter Issuer
itself undertakes to perform all of
the obligations set forth herein.
B. Schedule B contains statements
that DTC believes accurately
describe DTC, the method of
effecting book-entry transfers of
securities distributed through DTC,
and certain related matters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
-------------------------------------------
[Issuer]
By: /s/
----------------------------------------
[Authorized Officer's Signature]
WELLS FARGO BANK MINNESOTA, N.A.
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[Agent]
By: /s/
----------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/
-------------------------------
Funds should be wired to:
The Chase Manhattan Bank
ABA#021000021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
[Select Appropriate Account.]
Dividend Deposit Account # 066-026776
Redemption Deposit Account # 066-027306
Reorganization Deposit Account # 066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
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SCHEDULE A
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[Describe Issue, Including Issuer's Name]
CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ---------------- ------------- -------------
[SEE ATTACHED]
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SCHEDULE A
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 2000-CKP 1
Certificates CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ------------ ---------------- ------------- -------------
S-1 23322B NY 0 $400,000,000 10/20 l.0912%
S-2 23322B NY 0 $400,000,000 10/20 1.0912%
S-3 23322B NY 0 $400,000,000 10/20 1.0912%
S-4 23322B NY 0 $ 89,918,771 10/20 1.0912%
<PAGE>
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Direct and Indirect Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
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4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede &Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
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[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
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[LOGO]
Representations for Rule 144A Securities--
to be included in DTC Letter of Representations
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are: [Note; Issuer must
represent one of the following, and shall cross out the other.]
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
3. If the Securities are not Investment-Grade Securities, Issuer and Agent
acknowledge that if such Securities cease to be included in an SRO Rule 144A
System during any period in which such Securities are Legally or Contractually
Restricted Securities, such Securities shall no longer be eligible for DTC's
services. Furthermore, DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under any of the aforementioned circumstances, at
DTC's request, Issuer and Agent shall cooperate fully with DTC by taking
appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities.
--------------------
(1) A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security"
is a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security." The underlying security must also be a "Legally or Contractually
Restricted Security."
<PAGE>
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize that DTC does not in any way
undertake to, and shall not have any responsibility to, monitor or ascertain the
compliance of any transactions in the Securities with any of the provisions: (a)
of Rule 144A; (b) of other exemptions from registration under the Securities Act
or any other state or federal securities laws; or (c) of the offering documents.
-2-
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Wells Fargo Bank Minnesota, N.A.
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of November 1, 2000 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, the undersigned as master servicer (in
such capacity, the "Master Servicer") and as special sub-servicer, Midland Loan
Services, Inc. as special servicer and you as trustee (in such capacity, the
"Trustee"), the undersigned as Master Servicer hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies
that all amounts received in
connection with the Mortgage Loan
that are required to be credited to
the Collection Account pursuant to
the Pooling and Servicing Agreement,
have been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Mortgage Loan
has been paid in full, in which case the Mortgage File (or such portion thereof)
will be retained by us permanently.
D-1-1
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
KEY CORPORATE CAPITAL INC. D/B/A
KEY COMMERCIAL MORTGAGE
as Master Servicer
By:_______________________________
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER/SPECIAL SUB-SERVICER
REQUEST FOR RELEASE
[Date]
Wells Fargo Bank Minnesota, N.A.
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Pass-Through Certificates,
Series 2000-CKP1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of November 1, 2000 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage as master servicer and as special sub-servicer, (the
"Special Sub-Servicer"), Midland Loan Services, Inc. as special servicer (the
"Special Servicer") and you as trustee (in such capacity, the "Trustee"), the
undersigned as [Special Servicer] [Special Sub-Servicer] hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe) _____________________________________________
_____________________________________________
D-2-1
<PAGE>
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[MIDLAND LOAN SERVICES, INC.]
as Special Servicer]
[KEY CORPORATE CAPITAL INC. D/B/A
KEY COMMERCIAL MORTGAGE]
as Special Sub-Servicer]
By: _______________________________
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E
FORM OF TRUSTEE REPORT
[See Attached Schedule]
E-1-1
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
DISTRIBUTION DATE STATEMENT
TABLE OF CONTENTS
--------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(S)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7-9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14-15
Modified Loan Detail 16
Liquidated Loan Detail 17
--------------------------------------------------------------------------------
DEPOSITOR
--------------------------------------------------------------------------------
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Contact: N. Dante LaRocca
Phone Number: (212) 892-3000
--------------------------------------------------------------------------------
MASTER SERVICER
--------------------------------------------------------------------------------
Key Corporate Capital Inc.
911 Main Street
Suite 1500
Kansas City, MO 64105
Contact: Marty O'Connor
Phone Number: (816) 221-8800
--------------------------------------------------------------------------------
SPECIAL SUB-SERVICER
--------------------------------------------------------------------------------
Key Corporate Capital Inc.
911 Main Street
Suite 1500
Kansas City, MO 64105
Contact: Marty O'Connor
Phone Number: (816) 221-8800
--------------------------------------------------------------------------------
SPECIAL SERVICER
--------------------------------------------------------------------------------
Midland Loan Services, Inc.
210 West 10th Street
Kansas City, MO 64105
Contact: Brad Hauger
Phone Number: (816) 292-8629
--------------------------------------------------------------------------------
This report has been compiled from information provided to Wells Fargo Bank MN,
N.A. by various third parties, which may include the Servicer, Master Servicer,
Special Servicer and others. Wells Fargo Bank MN, N.A. has not independently
confirmed the accuracy of information received from these third parties and
assumes no duty to do so. Wells Fargo Bank MN, N.A. expressly disclaims any
responsibility for the accuracy or completeness of information furnished by
third parties.
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 1 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
CERTIFICATE DISTRIBUTION DETAIL
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Interest
Pass-Through Original Beginning Principal Distri- Prepayment Realized Loss/ Total Ending Current
Class/ CUSIP Rate Balance Balance Distribution bution Penalties Additional Trust Distribution Balance Subordination
Component Fund Expenses Level (1)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-9 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------
Original Beginning Interest Ending
Pass-Through Notional Notional Distri- Prepayment Total Notional
Class CUSIP Rate Amount Amount bution Penalties Distribution Amount
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
-------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the designated
class and (ii) the ending certificate balance of all classes which are not
subordinate to the designated class and deviding the result by (A).
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 2 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
CERTIFICATE FACTOR DETAIL
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
Beginning Principal Interest Prepayment Realized Loss / Ending
Class/ CUSIP Balance Distribution Distribution Penalties Additional Trust Balance
Component Fund Expenses
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
A-1A 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-1B 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-2 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-3 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-4 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-1 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-2 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-3 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-4 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-5 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-6 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-7 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-8 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-9 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
C 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
D 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
E 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
R 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
Beginning Interest Prepayment Ending
Class CUSIP Notional Distribution Penalties Notional
Amount Amount
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
S 0.00000000 0.00000000 0.00000000 0.00000000
----------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 3 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
RECONCILIATION DETAIL
ADVANCE SUMMARY
P & I Advances Outstanding 0.00
Servicing Advances Outstanding 0.00
Reimbursements for Interest on P&I 0.00
Advances paid from general collections
Reimbursements for Interest on Servicing 0.00
Advances paid from general collections
MASTER SERVICING FEE SUMMARY
Current Period Accrued Master Servicing Fees 0.00
Less Master Servicing Fees on Delinquent Payments 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees on Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
CERTIFICATE INTEREST RECONCILIATION
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
Distributable
Accrued Net Aggregate Distributable Certificate Additional Remaining Unpaid
Certificate Prepayment Certificate Interest Trust Fund Interest Distributable
Class Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-9 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 4 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
OTHER REQUIRED INFORMATION
--------------------------------------------------------------------------------
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Stand-by Fee 0.00
Aggregate Trust Fund Expenses 0.00
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
--------------------------------------------------------------------------------
Appraisal Reduction Amount
--------------------------------------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Amount Amount Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TOTAL
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 5 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
RATINGS DETAIL
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
Class CUSIP -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
DCR Fitch Moody's S & P DCR Fitch Moody's S & P
-----------------------------------------------------------------------------------------------------------------
A-1A
A-1B
A-2
A-3
A-4
S
B-1
B-2
B-3
B-4
B-5
B-6
B-7
B-8
B-9
C
-----------------------------------------------------------------------------------------------------------------
</TABLE>
NR - Designates that the class was not rated by the above agency at the time
of original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
Fitch, Inc.
One State Street Plaza
New York, New York 10004
(212) 908-0500
Moody's Investors Service
99 Church Street
New York, New York 10007
(212) 553-0300
Standard & Poor's Rating Services
55 Water Street
New York, New York 10041
(212) 438-2430
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 6 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
SCHEDULED BALANCE
--------------------------------------------------------------------------------
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
STATE (3)
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
See footnotes on last page of this section.
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 7 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
DEBT SERVICE COVERAGE RATIO
--------------------------------------------------------------------------------
Debt Service % of
Coverage # of Scheduled Agg. WAM Weighted
Ratio Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
PROPERTY TYPE (3)
--------------------------------------------------------------------------------
% of
Property # of Scheduled Agg. WAM Weighted
Type Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
NOTE RATE
--------------------------------------------------------------------------------
% of
Note # of Scheduled Agg. WAM Weighted
Rate Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
SEASONING
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
Seasoning Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
See footnotes on last page of this section.
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 8 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS)
--------------------------------------------------------------------------------
Anticipated % of
Remaining # of Scheduled Agg. WAM Weighted
Term (2) Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
REMAINING STATED TERM (FULLY AMORTIZING LOANS)
--------------------------------------------------------------------------------
Remaining % of
Stated # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS)
--------------------------------------------------------------------------------
Remaining % of
Amortization # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
AGE OF MOST RECENT NOI
--------------------------------------------------------------------------------
Age of Most % of
Recent # of Scheduled Agg. WAM Weighted
NOI Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Trustee makes
no representations as to the accuracy of the data provided by the borrower for
this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date balance of each
property as disclosed in the offering document.
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 9 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
MORTGAGE LOAN DETAIL
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
----------------------------------------------------------------------
Ending Paid Appraisal Appraisal Res. Mod.
Scheduled Thru Reduction Reduction Strat. Code
Balance Date Date Amount (2) (3)
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------
Totals
----------------------------------------------------------------------
</TABLE>
(1) Property Type Code
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 10 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
PRINCIPAL PREPAYMENT DETAIL
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Penalties
Offering Document -------------------------------------------------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Percentage Premium Yield Maintenance Charge
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 11 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
HISTORICAL DETAIL
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
Delinquencies Prepayments
-------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------
Rate and Maturities
--------------------------------------
Distribution Next Weighted Avg.
Date Coupon Remit WAM
--------------------------------------
<S> <C> <C> <C>
--------------------------------------
</TABLE>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 12 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
DELINQUENCY LOAN DETAIL
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------
<CAPTION>
-----------------------------------------------------------------------------------------
Current Outstanding
Foreclosure Servicing Servicing Bankruptcy Date REO
Loan Number Date Advances Advances Date
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------
</TABLE>
(1) Status of Mortgage Loan
A - Payment Not Received 2 - Two Months Delinquent
But Still in Grace Period 3 - Three Or More Months Delinquent
B - Late Payment But Less 4 - Assumed Scheduled Payment
Than 1 Month Delinquent (Performing Matured Loan)
0 - Current 7 - Foreclosure
1 - One Month Delinquent 9 - REO
(2) Resolution Strategy Code
1 - Modification 9 - Pending Return
2 - Foreclosure to Master Servicer
3 - Bankruptcy 10 - Deed In Lieu Of
4 - Extension Master Servicer
5 - Note Sale 11 - Full Payoff
6 - DPO 12 - Reps and Warranties
7 - REO 13 - Other or TBD
8 - Resolved
** Outstanding P & I Advances include the current period advance
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 13 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
SPECIALLY SERVICED LOAN DETAIL - PART 1
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------
Net Remaining
Distribution Actual Operating NOI Note Maturity Amortization
Date Balance Income Date DSCR Date Date Term
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------
</TABLE>
(1) Resolution Strategy Code
1 - Modification 8 - Resolved
2 - Foreclosure 9 - Pending Return
3 - Bankruptcy to Master Servicer
4 - Extension 10 - Deed In Lieu Of
5 - Note Sale Foreclosure
6 - DPO 11 - Full Payoff
7 - REO 12 - Reps and Warranties
13 - Other or TBD
(2) Property Type Code
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 14 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
SPECIALLY SERVICED LOAN DETAIL - PART 2
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Phase 1 Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Resolution Strategy Code
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 15 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
MODIFIED LOAN DETAIL
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification
Number Cross-Reference Balance Modification Date Modification Description
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 16 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2000-CKP1
------------------------------------------
[LOGO OF WELLS FARGO BANK] For Additional Information, please contact
WELLS FARGO BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
11000 BROKEN LAND PARKWAY Reports Available on the World Wide Web
COLUMBIA, MD 21044 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 12/11/2000
RECORD DATE: 11/30/2000
================================================================================
LIQUIDATED LOAN DETAIL
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
Final
Recovery Offering Gross Proceeds Aggregate
Loan Determination Document Appraisal Appraisal Actual Gross as a % of Liquidation
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance Expenses *
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------------------
Current Total
-------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------------------------------------------------
Net Net Proceeds Repurchased
Loan Liquidation as a % of Realized by Seller
Number Proceeds Actual Balance Loss (Y/N)
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
--------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
================================================================================
Copyright 1997, Wells Fargo Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class ______ Certificates [having an
initial aggregate Certificate [Principal Balance] [Notional Amount] as
of November 7, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of November 1, 2000 among DLJ Commercial Mortgage Corp. as
Depositor, Key Corporate Capital Inc. d/b/a Key Commercial Mortgage as Master
Servicer and as Special Sub-Servicer, Midland Loan Services, Inc. as Special
Servicer, and Wells Fargo Bank Minnesota, N.A. as Trustee. All capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred
F-1A-1
<PAGE>
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a distribution of
the Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the Transferor in this
matter reasonably believe that the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act (a "Qualified Institutional Buyer") purchasing for its own account or for
the account of another person that is itself a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter has
relied upon the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser;
or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state, or
local governmental agency or self-regulatory organization, or
with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16 months
preceding the date of sale of the Transferred Certificates in the
case of a U.S. purchaser and within 18 months preceding such date
of sale in the case of a foreign purchaser; or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser;
or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of
the Transferee, specifying the amount of securities owned and
invested on a discretionary basis by the Transferee as of a
specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of securities owned
by the "family of investment companies" as of a specific date on
or since the close of the Transferee's most recent fiscal year.
F-1A-2
<PAGE>
___ (e) Other. (Please specify brief description of method) ____________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded: securities
of issuers that are affiliated with such entity; securities that are
part of an unsold allotment to or subscription by such entity, if such
entity is a dealer; securities of issuers that are part of such
entity's "family of investment companies", if such entity is a
registered investment company; bank deposit notes and certificates of
deposit; loan participations; repurchase agreements; securities owned
but subject to a repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities may be valued at market;
and
(c) securities owned by subsidiaries of the entity that are consolidated
with the entity in its financial statements prepared in accordance
with generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of
the entity, except that, unless the entity is a reporting company
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, securities owned by such subsidiaries may not be included if
the entity itself is a majority-owned subsidiary that would be
included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or caused
to be furnished, to the Transferee all information regarding (a) the Depositor,
(b) the Transferred Certificates and distributions thereon, (c) the nature,
performance and servicing of the Mortgage Loans, (d) the Pooling and Servicing
Agreement, and (e) all related matters, that the Transferee has requested.
Very truly yours,
-----------------------------
(Transferor)
By:______________________________
Name:____________________________
Title:___________________________
F-1A-3
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class ______ Certificates [having an
initial aggregate Certificate [Principal Balance] [Notional Amount] as
of November 7, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates, (the "Transferred Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of November 1, 2000, among DLJ Commercial Mortgage Corp.
as Depositor, Key Corporate Capital Inc. d/b/a Key Commercial Mortgage as Master
Servicer and as Special Sub-Servicer, Midland Loan Services, Inc. as Special
Servicer, and Wells Fargo Bank Minnesota, N.A. as Trustee. All capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
F-1B-1
<PAGE>
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of the Transferred Certificates
under the Securities Act of 1933, as amended (the "Securities Act"), would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
Very truly yours,
-----------------------------
(Transferor)
By:______________________________
Name:____________________________
Title:___________________________
F-1B-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class ______ Certificates [having an
initial aggregate Certificate [Principal Balance] [Notional Amount] as
of November 7, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of November 1, 2000 among DLJ Commercial Mortgage Corp. as
Depositor, Key Corporate Capital Inc. d/b/a Key Commercial Mortgage as Master
Servicer and as Special Sub-Servicer, Midland Loan Services, Inc. as Special
Servicer, and Wells Fargo Bank Minnesota, N.A. as Trustee. All capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own
F-2A-1
<PAGE>
account or for the account of another Qualified Institutional Buyer and to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
-----------------------------
(Transferee)
By:______________________________
Name:____________________________
Title:___________________________
F-2A-2
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
-------------------------------------
(Nominee)
By:__________________________________
Name:________________________________
Title:_______________________________
F-2A-3
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee"). ----------
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $______________________1 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale in the case of a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
-------------
1 Transferee or each of its eqity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2A-4
<PAGE>
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 Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such date of
sale in the case of a foreign savings and loan association or
equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.) ______________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
F-2A-5
<PAGE>
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee
By: ____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
F-2A-6
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
F-2A-7
<PAGE>
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:__________________________________
Name:________________________________
Title:_______________________________
IF AN ADVISER:
Print Name of Transferee
Date:_________________________
F-2A-8
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class ___ Certificates [having an
initial aggregate Certificate [Principal Balance] [Notional Amount] as
of November 7, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates") pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 2000 among DLJ
Commercial Mortgage Corp. as Depositor, Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage as Master Servicer and as Special Sub-Servicer, Midland Loan
Services, Inc. as Special Servicer, and Wells Fargo Bank Minnesota, N.A. as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant
F-2B-1
<PAGE>
to the Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in a transaction which is
exempt from such registration and qualification and the Certificate Registrar
has received (A) a certificate from the prospective transferor substantially in
the form attached as Exhibit F-1A to the Pooling and Servicing Agreement; (B) a
certificate from the prospective transferor substantially in the form attached
as Exhibit F-1B to the Pooling and Servicing Agreement and a certificate from
the prospective transferee substantially in the form attached either as Exhibit
F-2A or as Exhibit F-2B to the Pooling and Servicing Agreement; or (C) an
Opinion of Counsel satisfactory to the Certificate Registrar that the transfer
may be made without registration under the Securities Act, together with the
written certification(s) as to the facts surrounding the transfer from the
prospective transferor and/or prospective transferee upon which such Opinion of
Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT
OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS
CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
[(1)] A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT (A
F-2B-2
<PAGE>
"QUALIFIED INSTITUTIONAL BUYER") [OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D
UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS
CONSTITUTE ENTITIES DESCRIBED IN SUCH PARAGRAPHS].]
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
By:____________________________
(Transferee)
Name:
Title:
F-2B-3
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
-------------------------------
(Nominee)
By:____________________________
Name:
Title:
F-2B-4
<PAGE>
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN CLASS S CERTIFICATES
HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class S
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in Class S
Certificates having an initial Certificate Notional Amount as of November 7,
2000 (the "Closing Date") of $__________ (the "Transferred Certificates"). The
Certificates, including the Transferred Certificates, were issued pursuant to
the Pooling and Servicing Agreement, dated as of November 1, 2000 (the "Pooling
and Servicing Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor"), Key Corporate Capital Inc. d/b/a Key Commercial Mortgage as master
servicer and as special sub-servicer, Midland Loan Services, Inc. as special
servicer, and Wells Fargo Bank Minnesota, N.A. as trustee (the "Trustee"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, 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 Transfer to it of
the Transferor's interest in the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring such interest in the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
neither the Depositor nor the Trustee is obligated so to register or
qualify the Transferred Certificates, and (c) neither the Transferred
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant
to the Securities Act and registered or qualified pursuant any applicable
state securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Transferor
F-2C-1
<PAGE>
desiring to effect such transfer has received either (A) a certificate from
the prospective transferee substantially in the form attached either as
Exhibit F-2C to the Pooling and Servicing Agreement or as Exhibit F-2D to
the Pooling and Servicing Agreement or (B) an opinion of counsel
satisfactory to the Transferor to the effect that such transfer may be made
without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that 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, PLEDGE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF, ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
4. The Transferee has been furnished with all information regarding
(a) The Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, and (e) all related matters, that
it has requested.
Very truly yours,
(Transferee)
By:_____________________________
Name:
Title:
F-2C-2
<PAGE>
ANNEX 1 TO EXHIBIT F-2C
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 for the benefit of DLJ Commercial Mortgage Corp. with respect
to the mortgage pass-through certificates being transferred in book-entry form
(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 acquiring interests in the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________2 in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. bank, and
not more than 18 months preceding such date of sale for a foreign
bank or equivalent institution.
--------------
2 Transferee or each of its equity owners must own and/or invest on a
discretionay basis at least $100,000,000 in securities unless Transferee or
any such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest
on a discretionary basis at least $10,000,000 in securities.
F-2C-3
<PAGE>
___ 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 Transferred Certificates in
the case of a U.S. savings and loan association, and not more than 18
months preceding such date of sale in the case of a foreign savings
and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any such Person, the Transferee used
the cost of such
F-2C-4
<PAGE>
securities to such Person, unless such Person reports its securities holdings in
its financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities were valued at market. Further, in determining such
aggregate amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are consolidated with
such Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of another
enterprise and such Person is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the Transferred
Yes No Certificates 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 acquiring any interest in the Transferred Certificates 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 acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. 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 acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
(Transferee)
By:_____________________________
Name:
Title:
Date:
F-2C-5
<PAGE>
ANNEX 2 TO EXHIBIT F-2C
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 DLJ Commercial Mortgage Corp. with respect
to the mortgage pass-through certificates being transferred in book-entry form
(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 acquiring interests in 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).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
F-2C-6
<PAGE>
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
Transfers to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the Transferred
Yes No Certificates 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 acquiring any interest in the Transferred Certificates 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 acquisition of any interest in the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
(Transferee or Adviser)
By:_______________________________
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
F-2C-7
<PAGE>
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN CLASS S CERTIFICATES
HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class S
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in Class S
Certificates having an initial Certificate Notional Amount as of November 7,
2000 (the "Closing Date") of $__________ (the "Transferred Certificates"). The
Certificates, including the Transferred Certificates, were issued pursuant to
the Pooling and Servicing Agreement, dated as of November 1, 2000 (the "Pooling
and Servicing Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor"), Key Corporate Capital Inc. d/b/a Key Commercial Mortgage as master
servicer and as special sub-servicer, Midland Loan Services, Inc. as special
servicer and Wells Fargo Bank Minnesota, N.A. as trustee. All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to and agrees with you, and for the benefit of the
Depositor, that:
1. The Transferee is acquiring the Transferor's beneficial ownership
interest in 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 Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
neither the Depositor nor the Trustee is obligated so to register or
qualify the Transferred Certificates, and (c) neither the Transferred
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant
to the Securities Act and registered or qualified pursuant any applicable
state securities laws, or (ii) is sold or transferred in transactions which
are exempt from such registration and qualification and the Transferor
desiring to effect such transfer has received either (A) a certificate from
the prospective
F-2D-1
<PAGE>
transferee substantially in the form attached either as Exhibit F-2C to the
Pooling and Servicing Agreement or as Exhibit F-2D to the Pooling and
Servicing Agreement or (B) an opinion of counsel satisfactory to the
Transferor to the effect that such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that 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, PLEDGE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF, ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
4. 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
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in 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
F-2D-2
<PAGE>
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.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is 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 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 investment and can afford a complete loss of such
investment.
Very truly yours,
By:_______________________________
Name:
F-2D-3
<PAGE>
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE NON-REGISTERED CERTIFICATES)
[Date]
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class ______ Certificates [having an
initial Certificate [Principal Balance] [Notional Amount] as of
November 7, 2000 (the "Closing Date") of $________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 2000 among DLJ Commercial Mortgage Corp. as Depositor, Key Corporate
Capital Inc. d/b/a Key Commercial Mortgage as Master Servicer and as Special
Sub-Servicer, Midland Loan Services, Inc. as Special Servicer, and Wells Fargo
Bank Minnesota, N.A. as Trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as Certificate Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement
account or annuity, a Keogh plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), nor (B)
a Person who is directly or indirectly purchasing the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan; or
G-1-1
<PAGE>
___ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the purchase
and holding of such Certificates by such Person is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60.
___ The Transferred Certificates are Class S Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on one
of the individual prohibited transaction exemptions issued by the U.S.
Department of Labor to Donaldson, Lufkin & Jenrette Securities
Corporation (PTE 90-83), to Prudential Securities Incorporated (PTE
90-32) and to Credit Suisse First Boston Corporation (PTE 89-90), and
such Plan (X) is an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Fiscal Agent, any of the Mortgage Loan Sellers, the
Master Servicer, any Exemption-Favored Party, the Special Servicer,
the Special Sub-Servicer, any Sub-Servicer or any Borrower with
respect to any Mortgage Loan or group of Mortgage Loans that
represents more than 5% of the aggregate unamortized principal balance
of the Mortgage Loans determined on the date of the initial issuance
of the Certificates, or by an Affiliate of any such Person, and (Z)
agrees that it will obtain from each of its Transferees to which it
transfers an interest in the Transferred Certificates, a written
representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
Very truly yours,
By: ___________________________
(Transferee)
Name:
Title:
G-1-2
<PAGE>
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(CLASS S CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class S
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class S Certificates having an initial Certificate Notional Amount as of
November 7, 2000 (the "Closing Date") of $__________ (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of November 1,
2000 (the "Pooling and Servicing Agreement"), among DLJ Commercial Mortgage
Corp. as depositor (the "Depositor"), Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage as master servicer and as special sub-servicer, Midland Loan
Services, Inc. as special servicer, and Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee"). All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you as
follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit
plan or other retirement arrangement, including an individual
retirement account or annuity, a Keogh plan or a collective investment
fund or separate account in which such plans, accounts or arrangements
are invested, including an insurance company general account, that is
subject to Section 406 of ERISA or Section 4975 of the Code (each, a
"Plan"), nor (B) a Person who is directly or indirectly ----
purchasing an interest in the Transferred Certificates on behalf of,
as named fiduciary of, as trustee of, or with assets of, a Plan;
___ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or
___ The Transferred Certificates are Class S Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on one
of the individual prohibited
G-2-1
<PAGE>
transaction exemptions issued by the U.S. Department of Labor to
Donaldson, Lufkin & Jenrette Securities Corporation (PTE 90-83), to
Prudential Securities Incorporated (PTE 90-32) and to Credit Suisse
First Boston Corporation (PTE 89-90), and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of
the Securities Act, (Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal
Agent, any of the Mortgage Loan Sellers, the Master Servicer, any
Exemption-Favored Party, the Special Servicer, the Special
Sub-Servicer, any Sub-Servicer or any Borrower with respect to any
Mortgage Loan or group of Mortgage Loans that represents more than 5%
of the aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain
from each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
(Transferee)
By:___________________________
Name:
Title:
G-2-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1, Class R,
evidencing a __% Percentage Interest in such Class (the "Residual Interest
Certificates")), a _________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Interest Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
Permitted Transferee and will endeavor to remain a Permitted Transferee for so
long as it holds the Residual Interest Certificates, and (ii) is acquiring the
Residual Interest Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "Disqualified Organization" or a "Non-United States Person", but in
addition, if such Person is classified as a partnership under the Internal
Revenue Code of 1986 (the "Code"), such Person can only be a "Permitted
Transferee" if all of its beneficial owners are United States Persons. For this
purpose, a "Disqualified Organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or international organization, any
rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless
such organization is subject to the tax on unrelated business taxable income. A
"Non-United States Person" is any Person other than a "United States Person". A
"United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, an estate whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust as to which
(i) a court in the United States is able to exercise primary supervision over
the administration of the trust and (ii) one or more United States fiduciaries
have the right to control all substantial decisions of the trust or, to the
extent provided in the Treasury regulations, a trust
H-1-1
<PAGE>
if it was in existence on August 20, 1996 and if elected to be treated as a
United States Person, all within the meaning of Section 7701 of the Code.
3. The Transferee is aware (i) of the tax that would be imposed under the
Code on transfers of the Residual Interest Certificates to non-Permitted
Transferees; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Interest
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Interest Certificates if at any time during the taxable
year of the pass-through entity a non-Permitted Transferee is the record holder
of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false. In addition,
the Transferee is aware the Certificate Registrar will not register any transfer
of the Residual Interest Certificates to an entity classified as a partnership
under the Code unless at the time of transfer, all of the beneficial owners of
such entity are "United States Persons".
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificates will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Interest Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause (ii)(B)
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
H-1-2
<PAGE>
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee represents to and for the benefit of the transferor that
it understands that, as the holder of a noneconomic residual interest, the
Transferee may incur tax liabilities in excess of any cash flows generated by
the interest and that the Transferee has historically paid its debts as they
become due and intends and has the ability to pay its debts as they become due
in the future.
11. Either [The Transferee will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit H-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Class R Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.] or [To the extent that the
Transferee has asserted that it regularly borrows, in the ordinary course of its
trade or business, substantial funds from unrelated third parties at a lower
interest rate than the applicable Federal rate as of the date hereof prescribed
by Section 1274(d) of the Code, the transactions in which the Transferee has
borrowed such funds, the interest rate or rates charged by the unrelated third
party lenders, the date or dates of such transactions, and the maturity dates
or, in the case of adjustable rate debt instruments, the relevant adjustment
dates or periods, with respect to such borrowings are accurately stated in
Exhibit A to this letter.]
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ______ day of ______________.
[NAME OF TRANSFEREE]
By:___________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
---------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this ______ day of __________________,
________.
---------------------------
NOTARY PUBLIC
COUNTY OF __________________
STATE OF ___________________
My Commission expires the _________ day of ___________, 20__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class R Certificates, evidencing a
____% Percentage Interest in such Class (the "Residual Interest
Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp. as Depositor, Key Corporate Capital Inc.
d/b/a Key Commercial Mortgage as Master Servicer and as Special Sub-Servicer,
Midland Loan Services, Inc. as Special Servicer, and Wells Fargo Bank Minnesota,
N.A. as Trustee. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Interest Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee (or the beneficial
owners of the Transferee if the Transferee is classified as a partnership under
the Code) as contemplated by Treasury regulation 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
H-2-1
<PAGE>
they become due in the future. The Transferor understands that the transfer of
the Residual Interest Certificates may not be respected for United States income
tax purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
By:_________________________________
(Transferor)
Name:
Title:
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF REQUEST FOR RATING CONFIRMATION IN
CONNECTION WITH REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investor's Service
99 Church Street
New York, NY 10007
Attention: __________________
Fitch, Inc.
One State Street Plaza, 31st Floor
New York, NY 10004
Attention: __________________
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the Pooling and
Servicing Agreement, dated as of November 1, 2000 (the "Agreement") among DLJ
Commercial Mortgage Corp. as Depositor, Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage ("KCCI") as Master Servicer and as Special Sub-Servicer,
Midland Loan Services, Inc. as Special Servicer and the undersigned as Trustee,
and relating to DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have respective meanings assigned to them in
the Agreement.
Notice is hereby given that [KCCI] [the Controlling Class Representative]
has designated ________________________ to serve as the Special Servicer under
the Agreement.
The designation of ____________________________ as Special Servicer will
become final if certain conditions are met and each Rating Agency delivers to
Wells Fargo Bank Minnesota, N.A., the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in an
Adverse Rating Event with respect to any Class of the Certificates. Accordingly,
such confirmation is hereby requested as soon as possible.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
-------------------------------------
-------------------------------------
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By:_______________________________
Name:
Title:
Date:
FITCH, INC.
By:_______________________________
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[SPECIAL SUB-SERVICER]
[DEPOSITOR]
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement, dated as
of November 1, 2000, relating to DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 2000-CKP1 (the "Agreement"), the
undersigned hereby agrees with all the other parties to the Agreement that the
undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges and agrees that, as of the date
hereof, it is and shall be a party to the Agreement and bound thereby to the
full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 2.06 of the Agreement, with the following
corrections with respect to type of entity and jurisdiction of organization:
____________________.
-----------------------------
By:__________________________
Name:
Title:
I-2-1
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
DLJ Commercial Mortgage Corp.
11 Madison Avenue
New York, NY 10010
SECURED PARTY:
Wells Fargo Bank Minnesota, N.A.*
as Trustee for the registered holders of
DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
45 Broadway, 12th Floor
New York, New York 10006
TEXT:
See Exhibit I Attached Hereto
---------------
* Notices to the Secured Party should be sent to 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Administration
(CMBS)-DLJ Commercial Mortgage Corp., Series 2000-CKP1.
J-1
<PAGE>
EXHIBIT I TO EXHIBIT J
This Exhibit I is attached to and incorporated in a financing statement
pertaining to DLJ Commercial Mortgage Corp. as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and Wells Fargo Bank
Minnesota, N.A. as trustee for the holders of the Series 2000-CKP1 Certificates
(referred to as the "Secured Party" for purposes of this financing statement
only), under that certain Pooling and Servicing Agreement, dated as of November
1, 2000 (the "Pooling and Servicing Agreement"), among the Debtor as depositor,
the Secured Party as trustee, Key Corporate Capital Inc. d/b/a Key Commercial
Mortgage as master servicer (in such capacity, the "Master Servicer") and as
special sub-servicer (in such capacity, the "Special Sub-Servicer") and Midland
Loan Services, Inc. as special servicer (in such capacity, the "Special
Servicer"), relating to the issuance of the Debtor's Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1 (collectively, the "Series 2000-CKP1
Certificates"). Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement. The
attached financing statement covers all of the Debtor's right (including the
power to convey title thereto), title and interest in and to the Trust Fund
created pursuant to the Pooling and Servicing Agreement, consisting of the
following:
1. The mortgage notes or other evidence of indebtedness of a borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Schedule of Mortgage Loans to the
Pooling and Servicing Agreement, which Schedule of Mortgage Loans is
attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar instruments
securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage Note and
Mortgage (collectively, with such related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Master Servicer pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Collection Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations,
and (d) the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from
time
J-2
<PAGE>
to time on deposit in the REO Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required to be
maintained by the Master Servicer, Special Servicer or Special
Sub-Servicer pursuant to the Pooling and Servicing Agreement, and (b)
all funds from time to time on deposit in the Servicing Account(s) and
Reserve Account(s);
8. (a) the Distribution Account required to be maintained by the Secured
Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
9. The Mortgage Loan Purchase Agreements and all rights of the Debtor
thereunder.
10. All insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be serviced by the Master
Servicer, Special Servicer or Special Sub-Servicer; and
11. All income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION
J-3
<PAGE>
IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY
WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY
APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A
CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY
INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING,
WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE
RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY
PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY
IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
J-4
<PAGE>
EXHIBIT A
SCHEDULE OF MORTGAGE LOANS
[See Attached Schedule]
J-5
<PAGE>
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall mean
for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any Contractual Recurring Replacement Reserve for
such Mortgaged Property as indicated in the Prospectus Supplement dated October
27, 2000 relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1 (the amounts described in this
clause (iii) to be prorated if "Net Operating Income" is being calculated for
less than a full fiscal year).
With respect to any Mortgaged Property "Operating Income" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds. Operating Income shall not include (a)
insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Operating Income but paid directly by any tenant to a
Person other than the Mortgagor except for real estate taxes paid directly to
any taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under space lease which is
the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, impositions, insurance premiums, management fees, payments
to third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
actually paid for by the Mortgagor. Operating Expenses shall not include
interest, principal and premium, if any, due under the Mortgage Note or
otherwise in connection with any other secured indebtedness, income taxes,
extraordinary capital improvements costs, or any non-cash charge or expense such
as depreciation.
K-1
<PAGE>
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, MD 21044-3562
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
In accordance with the Pooling and Servicing Agreement, dated as of
November 1, 2000 (the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor"), Key Corporate Capital Inc. d/b/a
Key Commercial Mortgage as master servicer and as special sub-servicer, Midland
Loan Services, Inc. as special servicer, and Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee"), with respect to the DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial holder of $___________ aggregate
[Certificate Principal Balance/Certificate Notional Amount] of the
Class ____ Certificates.
2. The undersigned is requesting access to the following information (the
"Information"):
___ The information on the Master Servicer's Internet Website
pursuant to Section 3.12(d) of the Pooling and Servicing
Agreement.
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior
written consent of the Trustee, be disclosed by the undersigned or by
its officers,
L-1-1
<PAGE>
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may provide all or any
part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but
only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any
part of the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
------------------------------------
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:_________________________________
Name:
Title:
Telephone No.:
L-1-2
<PAGE>
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Wells Fargo Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, MD 21044-3562
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1
In accordance with the Pooling and Servicing Agreement, dated as of
November 1, 2000 (the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor"), Key Corporate Capital Inc. d/b/a
Key Commercial Mortgage as master servicer and as special sub-servicer, Midland
Loan Services, Inc. as special servicer, and Wells Fargo Bank Minnesota, N.A. as
trustee (the "Trustee"), with respect to the DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting access to the following information (the
"Information") for use in evaluating such possible investment:
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that in the event the undersigned purchases
any Certificate or any interest in any Certificate, the undersigned
may provide all or any part of the Information to any other person or
entity that holds or is contemplating the purchase of
L-2-1
<PAGE>
any Certificate or interest therein, but only if such person or entity
confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential; and provided that the
undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:________________________________
Name:
Title:
Telephone No.:
L-2-2
<PAGE>
EXHIBIT M-1
FORM OF COLUMN MORTGAGE LOAN PURCHASE AGREEMENT
[See Attached]
M-1-1
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 27, 2000, between Column Financial, Inc., a Delaware
Corporation ("Column"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller") and DLJ Commercial
Mortgage Corp., a Delaware corporation ("DLJCMC"), as purchaser (in such
capacity, together with its successors and permitted assigns hereunder, the
"Purchaser").
RECITALS
Column desires to sell, assign, transfer, set over and otherwise convey to
DLJCMC, without recourse, and DLJCMC desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof. Certain of the Mortgage Loans
were originated by Union Capital Investments, LLC ("Union Capital"). With
respect to those Mortgage Loans identified on the Mortgage Loan Schedule as
having been originated by Union Capital (each such Mortgage Loan, a "Union
Capital Mortgage Loan"), Column is the beneficiary, either directly or by way of
assignment, of certain representations and warranties made by Union Capital,
with respect to the Union Capital Mortgage Loans pursuant to the Seller's
Warranty Certificate dated as of October 27, 2000 (the "Union Capital
Agreement"), from Union Capital in favor of the Seller. Column also desires to
assign to DLJCMC all of its right, title and interest in, to and under the Union
Capital Agreement.
DLJCMC intends to create a trust (the "Trust"), the primary assets of which
will be a segregated pool of multifamily and commercial mortgage loans that
includes the Mortgage Loans. Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund" will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Moody's Investors Service, Inc. and Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of November 1, 2000 (the "Pooling and Servicing Agreement"), among
DLJCMC, as depositor (in such capacity, the "Depositor"), Key Corporate Capital
Inc. d/b/a Key Commercial Mortgage, as master servicer (in such capacity, the
"Master Servicer") and as special sub-servicer (in such capacity the "Special
Sub-Servicer"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer"), and Wells Fargo Bank Minnesota, N.A., trustee (the "Trustee"),
relating to the issuance of DLJCMC's Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings assigned to them
in the Pooling and Servicing Agreement as in full force and effect on the
Closing Date (as defined in
1
<PAGE>
Section 1 hereof). It is anticipated that DLJCMC will transfer the Mortgage
Loans to the Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
DLJCMC intends to sell the Registered Certificates to Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), Prudential Securities Incorporated
("PSI"), Credit Suisse First Boston Corporation ("CSFB"), Salomon Smith Barney
Inc. ("SSBI") and McDonald Investments Inc. ("McDonald"), pursuant to an
underwriting agreement, dated as of the date hereof (the "Underwriting
Agreement"), among DLJCMC, DLJSC, PSI, CSFB, SSBI and McDonald; and DLJCMC
intends to sell the remaining Certificates (the "Non-Registered Certificates")
to DLJSC, PSI and CSFB, pursuant to a certificate purchase agreement, dated as
of the date hereof (the "Certificate Purchase Agreement"), between DLJCMC,
DLJSC, PSI and CSFB. The Registered Certificates are more fully described in the
prospectus dated October 17, 2000 (the "Basic Prospectus"), and the supplement
to the Basic Prospectus dated October 27, 2000 (the "Prospectus Supplement";
and, together with the Basic Prospectus, the "Prospectus"), as each may be
amended or supplemented at any time hereafter. The Non-Registered Certificates
are more fully described in the private placement memorandum dated October 27,
2000 (the "Memorandum"), as it may be amended or supplemented at any time
hereafter.
Column will indemnify DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald and certain
related parties with respect to the disclosure regarding the Mortgage Loans and
contained in the Prospectus, the Memorandum and certain other disclosure
documents and offering materials relating to the Certificates, pursuant to an
indemnification agreement, dated the date hereof (the "Indemnification
Agreement"), among Column, DLJCMC, DLJSC, PSI, CSFB, SSBI and McDonald.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1._____Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on November 7, 2000 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). As of the
close of business on the respective Due Dates for the Mortgage Loans in November
2000 (individually and collectively, the "Cut-off Date"), the Mortgage Loans
will have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before such date, whether or not
received, of $518,483,342, subject to a variance of plus or minus 5% (the
"Aggregate Cut-off Date Balance"). The purchase price for the Mortgage Loans
shall be as set forth in, or calculated in accordance with, the Term Sheet for
the Joint Conduit Securitizations dated ______, 2000 between DLJSC, PSI, Column,
Prudential Mortgage Capital, LLC and KeyBank National Association (the "Term
Sheet"), and the Purchaser shall pay such purchase price to the Seller on the
Closing Date by wire transfer in immediately available funds or by such other
method as shall be mutually acceptable to the parties hereto.
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SECTION 2. Conveyance of the Mortgage Loans.
(a) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, the Seller does hereby sell, assign, transfer, set
over and otherwise convey to the Purchaser, without recourse, all of the right,
title and interest of the Seller in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut off Date (other than scheduled payments of interest and principal due on
or before the Cut- off Date), together with all of the right, title and interest
of the Seller in and to the proceeds of any related title, hazard or other
insurance policies and any escrow, reserve or other comparable accounts related
to the Mortgage Loans and required for the ongoing administration and servicing
of the Mortgage Loans ("Reserves"), and all of the right, title and interest of
the Seller in, to and under the Union Capital Agreement (other than the Seller's
rights to indemnification under Section 4 of the Union Capital Agreement).
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any Additional Collateral (other than Reserves)
with respect to each Mortgage Loan. In addition, with respect to each Mortgage
Loan as to which any Additional Collateral is in the form of a Letter of Credit
as of the Closing Date, the Seller shall cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Purchaser or its designee the Seller's rights as the
beneficiary thereof and drawing party thereunder. Unless the Purchaser notifies
the Seller in writing to the contrary, the designated recipient of the items
described in the second preceding sentence, and the designated beneficiary under
each Letter of Credit referred to in the preceding sentence, shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee of
any notice of any remaining deficiencies to such Mortgage File as of
February 1, 2002, the Seller
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shall reconfirm its obligation to complete such Mortgage File and to
correct all deficiencies associated therewith, and, if it fails to do so
within 45 days after its receipt of such notice, the Seller shall deliver
to the Purchaser or its designee a limited power of attorney (in a form
reasonably acceptable to the Seller and the Purchaser) permitting the
Purchaser or its designee to execute all endorsements (without recourse)
and to execute and, to the extent contemplated by Section 2(d) and the
Pooling and Servicing Agreement, record all instruments of transfer and
assignment with respect to the subject Mortgage Loan;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; (ii) any other documents prepared or
delivered by the related Borrowers to the Seller with respect to the Mortgage
Loans and used by the Seller to prepare or assist in preparing Exhibits A-1 and
A-2 to the Prospectus Supplement; and (iii) all Reserves in the possession or
under the control of the Seller that relate to the Mortgage Loans. Unless the
Purchaser notifies the Seller in writing to the contrary, the designated
recipient of the items described in clauses (i), (ii) and (iii) of the preceding
sentence shall be the Master Servicer.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Mortgage Loans that are
required to be recorded or filed, as the case may be, under the Pooling and
Servicing Agreement; provided that the Seller shall not be responsible for
actually recording or filing any such assignments or other instruments of
transfer or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
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(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan) and to reflect
that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review. The
Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4, except as expressly
set forth in Section 5.
SECTION 4. Representations, Warranties and Covenants of the Seller and the
Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2. The respective representations and warranties of the parties hereto
set forth in Exhibits B-1 and B-2 are hereinafter referred to collectively as
the "Corporate Representations".
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, DLJSC, PSI, CSFB,
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SSBI and McDonald) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), whether by
the Seller pursuant to Section 5(a) of this Agreement or by Union Capital
pursuant to the Union Capital Agreement, each of the representations and
warranties set forth in Exhibit B-1 and Exhibit C (other than, in the case of a
Replacement Mortgage Loan substituted by Union Capital, the representations and
warranties set forth in Paragraph (d) of Exhibit B-1 and Paragraph 2 of Exhibit
C) to this Agreement. From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in or made pursuant to this Section 4 shall survive delivery of the
respective Mortgage Files to the Purchaser or its designee and shall inure to
the benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement or assignment. With respect to the Corporate Representations, such
survival shall continue for so long as any of the Mortgage Loans remains
outstanding.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller thereof in writing and request
that the Seller correct or cure such Breach or Document Defect. Within 90 days
of the earlier of discovery or receipt of written notice by the Seller that
there has been a Material Breach or a Material Document Defect (such 90-day
period, the "Initial Resolution Period"), the Seller shall, subject to
subsection (b) below, (i) cure such Material Breach or Material Document Defect,
as the case may be, in all material respects or (ii) repurchase each affected
Mortgage Loan (each, a "Defective Mortgage Loan") at the related Purchase Price
in accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller shall
certify in writing to the Purchaser (i) that any such Material Breach or
Material Document Defect, as the case may be, does not and will not cause the
Defective Mortgage Loan to fail to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) that such
Material Breach or Material Document Defect, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
the Seller has commenced and is diligently proceeding with the correction or
cure of such Material Breach or Material Document Defect, as the case may be,
within the applicable Initial Resolution Period, (iv) what actions the Seller is
pursuing in connection with the correction or cure thereof, and (v) that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller
(except with respect to United Capital Mortgage Loans as provided in Section
5(b)) shall have an additional period equal to the applicable Resolution
Extension Period to complete such cure or, failing such, to repurchase the
Defective Mortgage Loan; and provided, further, that, if the Seller's obligation
to repurchase any
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Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, in lieu of repurchasing such Defective
Mortgage Loan (but, in any event, no later than such repurchase would have to
have been completed), (i) replace such Defective Mortgage Loan with one or more
substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (ii) pay any corresponding
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement. Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller shall have no obligation to monitor the
Mortgage Loans regarding the existence of a Material Breach or Material Document
Defect, but if the Seller discovers a Material Breach or Material Document
Defect with respect to a Mortgage Loan, it will notify the Purchaser. For
purposes of remediating a Material Breach or Material Document Defect with
respect to any Mortgage Loan, "Resolution Extension Period" shall mean the
90-day period following the end of the applicable Initial Resolution Period.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of the related Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto; provided that no such termination
shall be effected unless and until the Purchaser has received from the Seller
(or, in the case of a Union Capital Mortgage Loan, Union Capital): (i) an
Opinion of Counsel to the effect that such termination will not cause an Adverse
REMIC Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to either Grantor Trust Pool and (ii) written confirmation
from each Rating Agency that such termination will not cause an Adverse Rating
Event to occur with respect to any Class of Rated Certificates; and provided,
further, that the Seller may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of terminating the cross-collateralization.
All costs and expenses incurred by the Purchaser or its designee pursuant to
this paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased or replaced. If the cross-collateralization
of any Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph, then, for purposes of (i) determining whether any Breach or Document
Defect is a Material Breach or Material Document Defect, as the case may be, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File
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for each such substitute mortgage loan to the Purchaser or its designee, (ii)
certify that such substitute mortgage loan satisfies or such substitute mortgage
loans satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement and (iii) send such certification to the Purchaser or its designee. No
mortgage loan may be substituted for a Defective Mortgage Loan as contemplated
by this Section 5(a) if the Defective Mortgage Loan to be replaced was itself a
Replacement Mortgage Loan, in which case, absent correction or cure, in all
material respects, of the relevant Material Breach or Material Document Defect,
the Defective Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, after the date on which it is added to
the Trust Fund) and on or prior to the related date of repurchase or
replacement, shall belong to the Purchaser and its successors and assigns.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller (or, in the case of a
Defective Mortgage Loan that is repurchased or replaced by Union Capital, to
Union Capital).
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser with respect to such Breach or Document
Defect.
(b) It is hereby acknowledged that, pursuant to Section 4(b), the Seller
will make the same representations and warranties set forth on Exhibit C with
respect to the Union Capital Mortgage Loans that it is making with respect to
the other Mortgage Loans. It is hereby, further, acknowledged that with respect
to the Union Capital Mortgage Loans, the rights of the Seller in respect of
those certain representations and warranties made by Union Capital pursuant to
the Union Capital Agreement and assigned by the Seller to the Purchaser pursuant
hereto will, in turn, be assigned by the Purchaser to the Trustee, as trustee
under the Pooling and Servicing Agreement, for the benefit of the
Certificateholders. Accordingly, it is hereby agreed that if, with respect to
any Union Capital Mortgage Loan, there exists a breach of any of Union Capital's
representations and warranties for which Union Capital could be required to
repurchase or (at its option, to the extent of its substitution rights and
subject to the Seller's right to approve any Replacement Mortgage Loan delivered
thereunder) replace such Union Capital Mortgage Loan, then notwithstanding that
such Union Capital Mortgage Loan may also constitute a Defective Mortgage Loan
for purposes of Section 5(a) of this Agreement by reason of a Material Breach,
the Seller shall be deemed not to have notice of such Material Breach (and,
correspondingly, not to be obligated to proceed with the cure of such Material
Breach or the repurchase of or substitution for such Union Capital Mortgage
Loan) unless and until Union Capital shall have failed to correct or cure such
Material Breach or repurchase or replace such
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Union Capital Mortgage Loan during the cure period (which does not exceed a
total of 180 days, taking account of any extension period) for the breach of its
representations and warranties set forth in the Union Capital Agreement;
provided that this sentence shall not apply in the event of a Material Breach
that relates to whether the Defective Mortgage Loan was, as of the Closing Date
(or, in the case of a Replacement Mortgage Loan, as of the date it was added to
the Trust Fund), a Qualified Mortgage; and, provided, further, that, if, as a
result of the failure of Union Capital to cure a Material Breach on the part of
the Seller with respect to a Union Capital Mortgage Loan or repurchase or
replace such Union Capital Mortgage Loan during the applicable cure period, the
Seller is obligated to correct or cure such Material Breach on its part or
repurchase or replace such Union Capital Mortgage Loan, the Seller shall be
obligated to do so within 90 days following the end of the
cure/repurchase/substitution period for Union Capital and the Seller shall not
be entitled to the Resolution Extension Period that is provided for in Section
5(a) of this Agreement with respect to Mortgage Loans that are not Union Capital
Mortgage Loans. In addition, if the price at which any Union Capital Mortgage
Loan is required to be repurchased by Union Capital, or the additional cash
amount to be paid together with the delivery of one or more Replacement Mortgage
Loans substituted by Union Capital for any Union Capital Mortgage Loan, in
either case in connection with a breach of Union Capital's representations and
warranties as contemplated above, is less than the applicable Purchase Price or
Substitution Shortfall Amount, as the case may be, the Seller shall make-up the
difference out of its own funds (payment of such difference to be made in
accordance with the reasonable directions of the Purchaser).
(c) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser shall
have executed and delivered such instruments of transfer or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller (i) the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder, and (ii) in the
case of a Union Capital Mortgage Loan, the rights in respect of such Union
Capital Mortgage Loan under the Union Capital Agreement that were assigned to
the Purchaser hereunder.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 875 Third Avenue,
New York, New York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly
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executed and delivered by all signatories as required pursuant to the respective
terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed by it after the Closing Date;
(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement;
(vii) The Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement, duly executed by the Purchaser and the Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald and the Rating Agencies
(collectively, for purposes of this Section 7, the "Interested Parties")
may rely, attaching thereto as exhibits (A) the resolutions of the board of
directors of the Seller authorizing the Seller's entering into the
transactions contemplated by this Agreement, and (B) the organizational
documents of the Seller;
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(iv) A certificate of good standing with respect to the Seller issued
by the Secretary of State of the State of Delaware not earlier than 30 days
prior to the Closing Date, and upon which the Interested Parties may rely;
(v) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) A written opinion of Long, Alderidge & Norman, special counsel
for the Seller, dated the Closing Date and addressed to the Interested
Parties and the Trustee, which opinion shall be substantially in the form
of Exhibit D-3A hereto (with such additions, deletions or modifications as
may be required by either Rating Agency);
(vii) A written opinion of Sidley & Austin, special counsel for the
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3B hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(viii) A written opinion of Sidley & Austin, special counsel for the
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3C hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(ix) A letter from Sidley & Austin, special counsel for the Seller,
dated the Closing Date and addressed to the Interested Parties (other than
the Rating Agencies), which letter shall be substantially in the form of
Exhibit D-3D hereto;
(x) One or more comfort letters from Arthur Andersen LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald
and their respective counsel, stating in effect that, using the assumptions
and methodology used by DLJCMC, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to
the Mortgage Loans set forth in any preliminary Prospectus Supplement and
the Prospectus Supplement, compared the results of their calculations to
the corresponding items in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, and found each such number and
percentage set forth in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results of
such calculations; and
(xi) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 8. Costs. The costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated pursuant to the terms of the
Term Sheet.
SECTION 9. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered to or
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mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by similar mailed writing, if
to the Purchaser, addressed to the Purchaser at 11 Madison Avenue, New York New
York, 10010, Attention: N. Dante LaRocca, telecopy number (212) 325-8105, or
such other address as may be designated by the Purchaser to the Seller in
writing, or, if to the Seller, addressed to the Seller at 3414 Peachtree Road,
N.E., Suite 1140, Atlanta, Georgia 30326-1113, Attention: President, telecopy
number (404) 239-0419, or such other address as may be designated by the Seller
to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by DLJCMC to the Trustee of its interests in the
Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Georgia Uniform Commercial
Code, the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; and (e) notifications to, and
acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
12
<PAGE>
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser, notwithstanding any restrictive or qualified endorsement or
assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Purchaser and
the Seller hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives, to the fullest possible extent, the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto,
DLJCMC is expressly authorized to assign its rights and obligations under this
Agreement, in whole or in part, to the Trustee for the benefit of the registered
holders and beneficial owners of the Certificates. To the extent of any such
13
<PAGE>
assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. Entire Agreement. Except as otherwise expressly contemplated
hereby, this Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with
respect to such matters.
[SIGNATURE PAGE FOLLOWS]
14
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
COLUMN FINANCIAL, INC.
By:_________________________________
Name:
Title:
DLJ COMMERCIAL MORTGAGE CORP.
By:_________________________________
Name:
Title:
<PAGE>
A-3
EXHIBIT A
MORTGAGE LOAN SCHEDULE
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 2000-CKP1
<TABLE>
<CAPTION>
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE ORIGINAL CUT-OFF DATE
- ------------- ------- ---- ----- -------- PRINCIPAL PRINCIPAL MONTHLY
BALANCE BALANCE (4) PAYMENT(5)
--------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 437 Madison Avenue 437 Madison Avenue New York NY 10022 $ 7,500,000 $87,301,842 $680,877.32
4 Alliance GD FH F1
39,619,141 39,491,001 308,576.54
4a Seven Gables 11 Laburnam Avenue Richmond VA 23223
Apartments
4b High Ridge Apartments 8111 Manderville Dallas TX 75231
Lane
5 McCandless Towers II 3965 Freedom Circle Santa Clara CA 95054
37,000,000 36,936,969 285,810.13
6 Alliance GD FH F2
30,380,859 30,282,599 236,623.51
6a Timbercreek 6001 Skillman Street Dallas TX 75231
Apartments
6b Deering Manor 2720 Hopkins Road Richmond VA 23234
Apartments
7 Commons at Sugarhouse 2100 South Highland Salt Lake UT 84106
Drive City 28,400,000 28,387,855 210,968.62
9 Metroplex 3530 Wilshire Los Angeles CA 90010
Boulevard 27,500,000 27,441,129 217,522.13
14 The Genesis Loan
17,100,000 17,094,039 133,184.58
14a Autumn Ridge 9607 Wickersham Road Dallas TX 75238
Apartments
14b Summer Glen 9624 Rolling Rock Dallas TX 75238
Apartments Lane
25 Highland Cove 3750 South Highland Salt Lake UT 84106
Retirement Community Drive City 12,187,500 12,151,936 101,443.77
26 Regency Warehouse 100 Adams Street Clinton MA 01510
11,625,000 11,609,943 90,542.15
28 Holiday Inn Orlando 5905 South Kirkman Orlando FL 32819
Road 12,000,000 11,555,033 91,991.97
38 One Cameron Place 7901 Cameron Road Austin TX 78752
9,750,000 9,736,383 79,153.26
41 CRYSTAL MOUNTAIN 9433 Bee Caves Road Austin TX 78733
OFFICE PARK (2C) 5,550,000 5,547,872 42,321.20
42 LAKE POINTE CENTER 11612 Bee Caves Road Austin TX 78733
II (2C) 3,800,000 3,798,543 28,976.68
47 Pembroke Office Park 281 Independence Virginia VA 23462
Boulevard Beach 8,600,000 8,409,024 63,103.75
53 Kmart - Allen 111 North Central Allen TX 75002
Expressway 6,750,000 6,743,159 51,328.70
59 Garfield Suites Hotel 2 Garfield Place Cincinnati OH 45202
5,750,000 5,734,657 49,321.33
61 Big-K Plaza 681 Main Street Torrington CT 06790
5,700,000 5,679,332 42,822.20
67 210 Main Street 210 Main Street Hackensack NJ 07601
5,500,000 5,486,446 41,706.95
68 Clearbrook Village 3516 Tall Oaks Circle Memphis TN 38118
Apartments 5,238,272 5,223,417 39,870.13
69 Brookdale Shopping 2500 8th Street South Moorhead MN 56560
Center 5,200,000 5,186,918 39,175.59
70 Courtyard by 16700 Northcross Drive Huntersville NC 28078
Marriott Hotel 5,150,000 5,146,556 42,690.85
71 Hamilton Park 6300 Ranchester Drive Houston TX 77036
Apartments 5,125,000 5,117,675 38,791.03
72 Brookwood Shopping 9000 South Western Oklahoma City OK 73139
Center Avenue 5,025,000 5,015,079 40,649.41
74 Landmark Garden 1551 West Airport Irving TX 75062
Apartments Freeway 5,000,000 4,966,737 38,162.55
75 Applecreek Apartments 9874 Dalecrest Drive Dallas TX 75220
4,925,000 4,915,179 39,734.02
76 Plaza At The Pointe 35248-35324 23 Mile New Baltimore MI 48047
Shopping Center Road 4,920,000 4,909,199 38,635.40
78 Scottsdale Airpark II 16001 North Scottsdale AZ 85260
Greenway-Hayden Loop 4,500,000 4,493,668 34,219.13
and 16000 North 80th Street
79 New Market Square 1040 Henderson Drive Jacksonville NC 27540
Shopping Center 4,500,000 4,488,844 34,060.41
80 Maple Leaf Apartments 7150, 7170 & 7190 Fresno CA 93720
North Maple Avenue 4,205,000 4,194,729 31,975.88
<CAPTION>
# PROPERTY NAME ORIGINAL REMAINING ORIGINATION REMAINING INTEREST ARD (7)
MORTGAGE TERM TO TERM TO AMORTIZATIONAMORTIZATION ONLY ------
INTEREST MATURITY MATURITY TERM TERM PERIOD
RATE (MONTHS) (MONTHS) (MONTHS) (MONTHS) (MONTHS)
---- ------------------ -------- -------- --------
(6) (6)
--- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 437 Madison Avenue 8.630% 120 115 360 355 0
4 Alliance GD FH F1 8.640% 120 113 360 353 0
4a Seven Gables
Apartments
4b High Ridge Apartments
5 McCandless Towers II 8.550% 120 116 360 356 0 7/1/2010
6 Alliance GD FH F2 8.640% 120 113 360 353 0
6a Timbercreek
Apartments
6b Deering Manor
Apartments
7 Commons at Sugarhouse 8.130% 120 119 360 359 0
9 Metroplex 8.810% 120 115 360 355 0
14 The Genesis Loan 8.640% 120 119 360 359 0
14a Autumn Ridge
Apartments
14b Summer Glen
Apartments
25 Highland Cove 8.900% 120 116 300 296 0
Retirement Community
26 Regency Warehouse 8.640% 120 117 360 357 0
28 Holiday Inn Orlando 7.410% 60 40 264 244 0
38 One Cameron Place 9.100% 120 116 360 356 0
41 CRYSTAL MOUNTAIN 8.410% 120 119 360 359 0
OFFICE PARK (2C)
42 LAKE POINTE CENTER 8.410% 120 119 360 359 0
II (2C)
47 Pembroke Office Park 8.000% 90 60 360 330 0
53 Kmart - Allen 8.380% 120 118 360 358 0
59 Garfield Suites Hotel 9.270% 120 116 300 296 0
61 Big-K Plaza 8.250% 120 113 360 353 0
67 210 Main Street 8.350% 120 115 360 355 0
68 Clearbrook Village 8.390% 120 114 360 354 0
Apartments
69 Brookdale Shopping 8.280% 120 115 360 355 0
Center
70 Courtyard by 8.850% 120 119 300 299 0
Marriott Hotel
71 Hamilton Park 8.330% 120 117 360 357 0
Apartments
72 Brookwood Shopping 9.060% 120 115 360 355 0
Center
74 Landmark Garden 8.420% 120 107 360 347 0
Apartments
75 Applecreek Apartments 9.030% 120 115 360 355 0
76 Plaza At The Pointe 8.730% 120 115 360 355 0
Shopping Center
78 Scottsdale Airpark II 8.380% 120 117 360 357 0
79 New Market Square 8.330% 120 115 360 355 0
Shopping Center
80 Maple Leaf Apartments 8.380% 120 115 360 355 0
<CAPTION>
# PROPERTY NAME DEFEASANCE DEFEASANCE FEE SIMPLE/ MORTGAGE LOAN INTEREST SERVICING
- ------------- (8) PERIOD (9) LEASEHOLD SELLER CALCULATION AND
---------- ----------- ----------- ------------- (30/360 / TRUSTEE
ACTUAL/360 / FEES
------------- ----
ACTUAL/365)
-----------
<S> <C> <C> <C> <C> <C> <C> <C>
1 437 Madison Avenue Yes L (2), D (7.75), Leasehold Column Actual/360 0.051700%
O (0.25)
4 Alliance GD FH F1 Yes L (2), D (7.5), Column Actual/360 0.051700%
O (0.5)
4a Seven Gables Fee Column
Apartments
4b High Ridge Apartments Fee Column
5 McCandless Towers II Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
6 Alliance GD FH F2 Yes L (2), D (7.5), Column Actual/360 0.051700%
O (0.5)
6a Timbercreek Fee Column
Apartments
6b Deering Manor Fee Column
Apartments
7 Commons at Sugarhouse Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
9 Metroplex Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
14 The Genesis Loan Yes L (2), D (7.5), O (0.5) Column Actual/360 0.051700%
14a Autumn Ridge Fee Column
Apartments
14b Summer Glen Fee Column
Apartments
25 Highland Cove Yes L (2), D (7.5), Fee/Leasehold Column Actual/360 0.051700%
Retirement Community O (0.5)
26 Regency Warehouse Yes L (2), D (7.5), Fee Column Actual/360 0.151700%
O (0.5)
28 Holiday Inn Orlando No N/A Fee/Leasehold Column Actual/360 0.051700%
38 One Cameron Place Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
41 CRYSTAL MOUNTAIN Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
OFFICE PARK (2C) O (0.5)
42 LAKE POINTE CENTER Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
II (2C) O (0.5)
47 Pembroke Office Park No N/A Fee Column Actual/365 0.051700%
53 Kmart - Allen Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
59 Garfield Suites Hotel Yes L (2), D (7.5), Fee/Leasehold Column Actual/360 0.051700%
O (0.5)
61 Big-K Plaza Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
67 210 Main Street Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
68 Clearbrook Village Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Apartments O (0.5)
69 Brookdale Shopping Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Center O (0.5)
70 Courtyard by Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Marriott Hotel O (0.5)
71 Hamilton Park Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Apartments O (0.5)
72 Brookwood Shopping Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Center O (0.5)
74 Landmark Garden Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Apartments O (0.5)
75 Applecreek Apartments Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
O (0.5)
76 Plaza At The Pointe Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
Shopping Center O (0.5)
78 Scottsdale Airpark II Yes L (2), D (7.5), Fee Column Actual/360 Actual/360
O (0.5)
79 New Market Square Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Shopping Center O (0.5)
80 Maple Leaf Apartments Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
</TABLE>
A-1
<PAGE>
<TABLE>
<CAPTION>
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE ORIGINAL CUT-OFF DATE
- ------------- ------- ---- ----- -------- PRINCIPAL PRINCIPAL MONTHLY
BALANCE BALANCE (4) PAYMENT(5)
--------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
86 Woodridge Apartments 301 North FM 1417 Sherman TX 75092
4,000,000 3,994,580 30,756.54
87 Dunwoody Plaza 1410 Dunwoody Village Atlanta GA 30338
Parkway 4,000,000 3,993,801 31,668.21
88 Schaumburg Plaza 1443 West Schaumburg Schaumburg IL 60194
Road 3,894,691 3,893,397 30,639.55
90 Harbor Technology 20280-20300 Del Amo Torrance CA 90502
Center Boulevard 3,804,000 3,795,831 30,062.03
91 Stove Works Office 112 Krog Street Atlanta GA 30307
Building 3,800,000 3,795,609 30,520.99
95 Forest Hills 5003-5017 & 5049 West Oak Forest IL 60452
Apartments 159th Street 3,700,000 3,689,211 27,927.03
101 Pine Trails 552 Spring Ridge Road Clinton MS 39056
Apartments 3,200,000 3,198,642 23,815.94
105 Bruno's Shopping 8020 & 8050 Highway Madison AL 35758
Center 72 West 3,300,000 3,123,994 25,932.88
106 Laddins Rock 497-501 West Main Stamford CT 06902
Street 3,120,000 3,118,605 22,915.21
107 Christine Place 248 North MacDonald Mesa AZ 85201
Apartments Street 3,115,000 3,110,793 23,973.73
and 239 North Robson Street
108 Best Western Siesta 5311 Ocean Boulevard Sarasota FL 34242
Beach Resort 3,200,000 3,108,838 24,044.61
109 Richland Hills 5800 Maudina Drive Nashville TN 37209
Apartments 3,100,000 3,098,709 23,180.39
116 214 Main Street 214 Main Street Hackensack NJ 07601
2,725,000 2,718,284 20,663.90
118 WINDER VILLAGE 398 Fairview Avenue Winder GA 30680
MANUFACTURED 1,560,000 1,556,390 12,061.45
HOUSING COMMUNITY (2D)
119 RUSSELL VILLAGE 1025 Midland Avenue Winder GA 30680
MANUFACTURED 1,120,000 1,117,409 8,659.50
HOUSING COMMUNITY (2D)
121 Phoenix Park 369 Long Hill Road Groton CT 06340
Apartments 2,611,000 2,606,244 19,799.43
123 Chabot Office Plaza 4780 Chabot Drive Pleasanton CA 94588
2,550,000 2,543,376 19,014.07
128 Miggy's Mall 9 Fox Run Center East PA 18301
Shopping Center Stroudsburg 2,438,000 2,435,280 19,757.30
132 Five Star Business 13914-13932 Valley La Puente CA 91744
Park Boulevard 2,300,000 2,291,190 17,587.30
134 Oaks Apartments 1912 South 5th Street Waco TX 76706
2,268,000 2,261,675 16,515.47
141 The Kirkland Loan
2,100,000 2,099,109 15,629.21
141a Lakeview Arms 800 Magee Drive Brookhaven MS 39601
Apartments
141b Jackson Square 730 North Jackson Brookhaven MS 39601
Apartments Street
144 Foxpoint Commons 13701-13795 West Lakewood CO 80228
Jewell Avenue 1,965,000 1,962,338 15,109.15
148 Flamingo West 3707 West Idlewild Tampa FL 33614
Apartments Avenue 1,920,000 1,916,763 14,872.13
153 Heritage Estates 600 South Maplewood Rantoul IL 61866
Manufactured Drive 1,830,000 1,827,417 13,902.86
Housing Community
154 Academy Apartments 9115 Academy Road Philadelphia PA 19136
1,827,500 1,824,450 14,194.61
157 Mission Hill 256 Parker Hill Roxbury MA 02120
Apartments Avenue & 197 Calumet 1,800,000 1,797,623 13,942.63
Street
158 Boston Square 19600-19654 West Strongsville OH 44136
Shopping Center 130th Street 1,800,000 1,797,584 13,878.73
160 Iteq Building 4422 FM-1960 Houston TX 77068
1,790,000 1,786,253 14,248.46
163 Emerald Lake 1700 Northeast 133rd North Miami FL 33181
Apartments Street 1,700,000 1,697,327 13,410.35
166 Eagle's Nest Office 4420 Hotel Circle San Diego CA 92108
Building Court 1,615,000 1,612,388 12,647.58
168 LAKEDALE APARTMENTS 2921 Kendale Drive Dallas TX 75220
(2E) 1,035,000 1,034,268 8,431.97
169 LIBERTY APARTMENTS 2530 Community Drive Dallas TX 75220
(2E) 525,000 524,629 4,277.09
173 Kmart Plaza - Minot One 20th Avenue Minot ND 58701
Southeast 1,500,000 1,477,856 11,856.84
174 Villa Del Rio 5817 Boca Raton Fort Worth TX 76112
Apartments Boulevard 1,480,000 1,477,748 11,770.24
175 Winchester Arms & 1706 and 3408 Rhawn Philadelphia PA 19136
Fox Chase Apartments Street, 417-19 1,450,000 1,447,605 11,293.43
Chandler Street,
304-6 Loney Street
and 7312-14 Rockwell
Street
177 55-65 Merrick Road 55-65 Merrick Road Amityville NY 11701
1,400,000 1,398,250 11,649.58
178 5055 California 5055 California Avenue Bakersfield CA 93309
Avenue 1,400,000 1,396,974 11,043.82
180 The
Monterey/Sherbrooke 1,402,000 1,386,387 11,832.81
Loan
180a Monterey Apartments 748-768 New Britain Hartford CT 06106
Avenue
180b Sherbrooke Apartments 90-118 Sherbrooke Hartford CT 06106
Avenue
187 Midway Commercial 2470-2512 University St. Paul MN 55114
Building Avenue West 1,250,000 1,248,833 9,762.42
188 Jersey Street 136 Jersey Street Waterbury CT 06706
Apartments 1,240,000 1,238,715 9,359.33
189 Preston Office Park 9741 Preston Road Frisco TX 75034
1,200,000 1,198,928 9,500.46
<CAPTION>
# PROPERTY NAME ORIGINAL REMAINING ORIGINATION REMAINING INTEREST ARD (7)
MORTGAGE TERM TO TERM TO AMORTIZATION AMORTIZATION ONLY ------
INTEREST MATURITY MATURITY TERM TERM PERIOD
RATE (MONTHS) (MONTHS) (MONTHS) (MONTHS) (MONTHS)
---- ------------------ -------- -------- --------
(6) (6)
--- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C>
86 Woodridge Apartments 8.500% 120 117 360 357 0
87 Dunwoody Plaza 8.820% 120 116 360 356 0
88 Schaumburg Plaza 8.750% 111 110 360 359 0
90 Harbor Technology 8.800% 120 115 360 355 0
Center
91 Stove Works Office 8.980% 120 117 360 357 0
Building
95 Forest Hills 8.300% 120 114 360 354 0
Apartments
101 Pine Trails 8.150% 120 119 360 359 0
Apartments
105 Bruno's Shopping 7.680% 180 145 264 229 0
Center
106 Laddins Rock 8.010% 120 119 360 359 0
107 Christine Place 8.510% 120 117 360 357 0
Apartments
108 Best Western Siesta 7.690% 120 94 300 274 0
Beach Resort
109 Richland Hills 8.200% 120 119 360 359 0
Apartments
116 214 Main Street 8.350% 120 115 360 355 0
118 WINDER VILLAGE 8.560% 120 115 360 355 0
MANUFACTURED
HOUSING COMMUNITY (2D)
119 RUSSELL VILLAGE 8.560% 120 115 360 355 0
MANUFACTURED
HOUSING COMMUNITY (2D)
121 Phoenix Park 8.350% 120 116 360 356 0
Apartments
123 Chabot Office Plaza 8.170% 120 115 360 355 0
128 Miggy's Mall 9.080% 120 117 360 357 0
Shopping Center
132 Five Star Business 8.440% 120 112 360 352 0
Park
134 Oaks Apartments 7.920% 120 115 360 355 0
141 The Kirkland Loan 8.150% 120 119 360 359 0
141a Lakeview Arms
Apartments
141b Jackson Square
Apartments
144 Foxpoint Commons 8.500% 120 117 360 357 0
148 Flamingo West 8.580% 120 116 360 356 0
Apartments
153 Heritage Estates 8.370% 120 117 360 357 0
Manufactured
Housing Community
154 Academy Apartments 8.610% 120 116 360 356 0
157 Mission Hill 8.580% 120 117 360 357 0
Apartments
158 Boston Square 8.530% 120 117 360 357 0
Shopping Center
160 Iteq Building 8.880% 120 115 360 355 0
163 Emerald Lake 8.780% 120 116 360 356 0
Apartments
166 Eagle's Nest Office 8.700% 120 116 360 356 0
Building
168 LAKEDALE APARTMENTS 8.640% 120 119 300 299 0
(2E)
169 LIBERTY APARTMENTS 8.640% 120 119 300 299 0
(2E)
173 Kmart Plaza - Minot 8.280% 120 104 300 284 0
174 Villa Del Rio 8.870% 120 116 360 356 0
Apartments
175 Winchester Arms & 8.640% 120 116 360 356 0
Fox Chase Apartments
177 55-65 Merrick Road 9.380% 120 116 360 356 0
178 5055 California 8.780% 120 115 360 355 0
Avenue
180 The 9.070% 120 106 300 286 0
Monterey/Sherbrooke
Loan
180a Monterey Apartments
180b Sherbrooke Apartments
187 Midway Commercial 8.670% 120 118 360 358 0
Building
188 Jersey Street 8.300% 120 118 360 358 0
Apartments
189 Preston Office Park 8.820% 120 118 360 358 0
<CAPTION>
# PROPERTY NAME DEFEASANCE DEFEASANCE FEE SIMPLE/ MORTGAGE LOAN INTEREST SERVICING
- ------------- (8) PERIOD (9) LEASEHOLD SELLER CALCULATION AND
---------- ----------- ----------- ------------- (30/360 / TRUSTEE
ACTUAL/360 / FEES
------------- ----
ACTUAL/365)
-----------
<S> <C> <C> <C> <C> <C> <C> <C>
86 Woodridge Apartments Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
87 Dunwoody Plaza Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
88 Schaumburg Plaza Yes L (2), D Fee Column Actual/360 0.051700%
(6.75), O (0.5)
90 Harbor Technology Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Center O (0.5)
91 Stove Works Office Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Building O (0.5)
95 Forest Hills Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
101 Pine Trails Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
105 Bruno's Shopping Yes L (2), D Fee Column Actual/360 0.051700%
Center (12.5), O (0.5)
106 Laddins Rock Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
107 Christine Place Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
108 Best Western Siesta No N/A Fee Column Actual/360 0.051700%
Beach Resort
109 Richland Hills Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
116 214 Main Street Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
118 WINDER VILLAGE Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
MANUFACTURED O (0.5)
HOUSING COMMUNITY (2D)
119 RUSSELL VILLAGE Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
MANUFACTURED O (0.5)
HOUSING COMMUNITY (2D) Column
121 Phoenix Park Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
123 Chabot Office Plaza Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
128 Miggy's Mall Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Shopping Center O (0.5)
132 Five Star Business Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Park O (0.5)
134 Oaks Apartments Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
141 The Kirkland Loan Yes L (2), D (7.5), Column Actual/360 0.051700%
O (0.5)
141a Lakeview Arms Fee Column
Apartments
141b Jackson Square Fee Column
Apartments
144 Foxpoint Commons Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
148 Flamingo West Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
153 Heritage Estates Yes L (2), D Fee Column Actual/360 0.051700%
Manufactured (7.5), O (0.5)
Housing Community
154 Academy Apartments Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
157 Mission Hill Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
158 Boston Square Yes L (2), D Fee Column Actual/360 0.051700%
Shopping Center (7.5), O (0.5)
160 Iteq Building Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
163 Emerald Lake Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
166 Eagle's Nest Office Yes L (2), D Fee Column Actual/360 0.051700%
Building (7.5), O (0.5)
168 LAKEDALE APARTMENTS Yes L (2), D Fee Column Actual/360 0.051700%
(2E) (7.5), O (0.5)
169 LIBERTY APARTMENTS Yes L (2), D Fee Column Actual/360 0.051700%
(2E) (7.5), O (0.5)
173 Kmart Plaza - Minot Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
174 Villa Del Rio Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
175 Winchester Arms & Yes L (2), D Fee Column Actual/360 0.051700%
Fox Chase Apartments (7.5), O (0.5)
177 55-65 Merrick Road Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
178 5055 California Yes L (2), D Fee Column Actual/360 0.051700%
Avenue (7.5), O (0.5)
180 The Yes L (2), D Actual/360 0.051700%
Monterey/Sherbrooke (7.5),
Loan O (0.5)
180a Monterey Apartments Fee Column
180b Sherbrooke Apartments Column
187 Midway Commercial Yes L (2), D Fee Column Actual/360 0.051700%
Building (7.5), O (0.5)
188 Jersey Street Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
189 Preston Office Park Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
</TABLE>
A-2
<PAGE>
<TABLE>
<CAPTION>
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE ORIGINAL CUT-OFF DATE
- ------------- ------- ---- ----- -------- PRINCIPAL PRINCIPAL MONTHLY
BALANCE BALANCE (4) PAYMENT(5)
--------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
190 Fairmont Oaks 4210 Young Street Pasadena TX 77504
Apartments 1,194,000 1,191,735 9,762.24
191 Premier Plaza 601 West Parker Road Plano TX 75023
Shopping Center 1,170,000 1,167,848 9,642.26
192 4404-4418 Walnut 4404-4418 Walnut Philadelphia PA 19104
Street Street 1,150,000 1,149,012 9,211.82
194 Orchard Park 1327 East 64th Street Tulsa OK 74136
Apartments 1,110,000 1,109,611 8,637.42
195 Quarry Ridge 1031 South Brookside Independence MO 64053
Apartments 1,100,000 1,099,578 8,387.99
197 Plaza Apartments 130, 140 & 150 Pompano Beach FL 33060
Southwest 8th Street 1,050,000 1,048,302 8,222.89
198 Gordon Portfolio and 840 Southwest 3rd Avenue
1,050,000 1,045,877 8,531.78
198a Mulberry Court 4015 Devereaux Philadelphia PA 19135
Apartments Street
198b 6919 Walker Street 6919 Walker Street Philadelphia PA 19035
198c 5711 Erdrick Street 5711 Erdrick Street Philadelphia PA 19135
200 Park City Plaza 8600 State Road 84 Davie FL 33324
1,023,000 1,022,042 7,982.28
201 Sunny Townhomes 8731 North 30th Street Tampa FL 33604
1,020,000 1,018,666 7,922.57
204 Royal Park Apartments 75 and 100 Southwest Fort FL 33301
10th Street Lauderdale 948,000 946,728 7,309.47
and 100 Southwest 9th Street
205 Greensburg Plaza 1807 North Broadway Greensburg IN 47240
Street 925,000 923,837 7,263.77
206 Wilson Heights 4908 36th Avenue Kenosha WI 53140
Apartments 920,000 919,178 7,283.69
207 Morello Building 2565 Northwest 1st Boca Raton FL 33431
Avenue 783,750 783,239 6,545.03
208 Town North Villa 1805 North Frances Terrell TX 75160
Apartments Street 732,000 731,246 6,048.53
209 Turney Square 301 West Turney Avenue Phoenix AZ 85013
Apartments 650,000 649,039 5,206.68
210 Lake Street 2199-2207 South Lake Salt Lake UT 84106
Apartments Street City 610,000 609,300 4,908.20
211 Atwood & Barker 22 Atwood Street and Hartford CT 06105
Apartments 185 Barker Street 600,000 599,405 4,596.48
212 162 Myrtle Avenue 162 Myrtle Avenue Stamford CT 06902
600,000 599,255 4,728.78
213 Summit Heights 3727-3735 Summit Kansas City MO 64111
Apartments Street and 712-722 600,000 599,140 4,537.16
West 38th Street
214 40 Scitico Road 40 Scitico Road Somers CT 06071
595,000 594,052 4,928.19
215 St. John's Office 1811 St. Johns Avenue Highland Park IL 60035
Building 520,000 519,815 4,031.56
216 Southlake Center 2303-2339 Kirkwood Houston TX 77077
Drive 510,000 509,125 4,277.20
217 Country Villa 1099 Lago Vista Eastland TX 76448
Apartments Boulevard 500,000 499,208 3,937.07
218 Coach Light 2405 East Park Row Arlington TX 76010
Apartments Drive 500,000 499,042 4,077.19
<CAPTION>
# PROPERTY NAME ORIGINAL REMAINING ORIGINATION REMAINING INTEREST ARD (7)
MORTGAGE TERM TO TERM TO AMORTIZATION AMORTIZATION ONLY ------
INTEREST MATURITY MATURITY TERM TERM PERIOD
RATE (MONTHS) (MONTHS) (MONTHS) (MONTHS) (MONTHS)
---- ------------------ -------- -------- --------
(6) (6)
--- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C>
190 Fairmont Oaks 9.180% 120 115 360 355 0
Apartments
191 Premier Plaza 9.270% 120 115 360 355 0
Shopping Center
192 4404-4418 Walnut 8.950% 120 118 360 358 0
Street
194 Orchard Park 8.630% 120 119 360 359 0
Apartments
195 Quarry Ridge 8.410% 120 119 360 359 0
Apartments
197 Plaza Apartments 8.700% 120 116 360 356 0
198 Gordon Portfolio 9.110% 120 111 360 351 0
198a Mulberry Court
Apartments
198b 6919 Walker Street
198c 5711 Erdrick Street
200 Park City Plaza 8.660% 120 118 360 358 0
201 Sunny Townhomes 8.610% 120 117 360 357 0
204 Royal Park Apartments 8.530% 120 117 360 357 0
205 Greensburg Plaza 8.730% 120 117 360 357 0
206 Wilson Heights 8.820% 120 118 360 358 0
Apartments
207 Morello Building 8.940% 120 119 300 299 0
208 Town North Villa 9.300% 120 117 360 357 0
Apartments
209 Turney Square 8.950% 120 116 360 356 0
Apartments
210 Lake Street 9.000% 120 117 360 357 0
Apartments
211 Atwood & Barker 8.460% 120 118 360 358 0
Apartments
212 162 Myrtle Avenue 8.770% 120 117 360 357 0
213 Summit Heights 8.320% 120 117 360 357 0
Apartments
214 40 Scitico Road 8.840% 120 118 300 298 0
215 St. John's Office 8.590% 120 119 360 359 0
Building
216 Southlake Center 9.470% 120 115 360 355 0
217 Country Villa 8.760% 120 116 360 356 0
Apartments
218 Coach Light 9.150% 120 115 360 355 0
Apartments
<CAPTION>
# PROPERTY NAME DEFEASANCE DEFEASANCE FEE SIMPLE/ MORTGAGE LOAN INTEREST SERVICING
- ------------- (8) PERIOD (9) LEASEHOLD SELLER CALCULATION AND
---------- ----------- ----------- ------------- (30/360 / TRUSTEE
ACTUAL/360 / FEES
------------- ----
ACTUAL/365)
-----------
<S> <C> <C> <C> <C> <C> <C> <C>
190 Fairmont Oaks Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
191 Premier Plaza Yes L (2), D Fee Column Actual/360 0.051700%
Shopping Center (7.5), O (0.5)
192 4404-4418 Walnut Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Street O (0.5)
194 Orchard Park Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
195 Quarry Ridge Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
Apartments O (0.5)
197 Plaza Apartments Yes L (2), D (7.5), Fee Column Actual/360 0.051700%
O (0.5)
198 Gordon Portfolio Yes L (2), D (7.5), Column Actual/360 0.051700%
O (0.5)
198a Mulberry Court Fee
Apartments
198b 6919 Walker Street Fee
198c 5711 Erdrick Street Fee
200 Park City Plaza Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
201 Sunny Townhomes Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
204 Royal Park Apartments Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
205 Greensburg Plaza Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
206 Wilson Heights Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
207 Morello Building Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
208 Town North Villa Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
209 Turney Square Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
210 Lake Street Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
211 Atwood & Barker Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
212 162 Myrtle Avenue Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
213 Summit Heights Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
214 40 Scitico Road Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
215 St. John's Office Yes L (2), D Fee Column Actual/360 0.051700%
Building (7.5), O (0.5)
216 Southlake Center Yes L (2), D Fee Column Actual/360 0.051700%
(7.5), O (0.5)
217 Country Villa Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
218 Coach Light Yes L (2), D Fee Column Actual/360 0.051700%
Apartments (7.5), O (0.5)
</TABLE>
(2C) THE UNDERLYING MORTGAGE LOANS SECURED BY CRYSTAL MOUNTAIN OFFICE PARK AND
LAKE POINTE CENTER II ARE CROSS-COLLATERALIZED AND CROSS-DEFAULTED,
RESPECTIVELY.
(2D) THE UNDERLYING MORTGAGE LOANS SECURED BY WINDER VILLAGE MANUFACTURED
HOUSING COMMUNITY AND RUSSELL VILLAGE MANUFACTURED HOUSING COMMUNITY ARE
CROSS-COLLATERALIZED AND CROSS-DEFAULTED, RESPECTIVELY. (2E) THE UNDERLYING
MORTGAGE LOANS SECURED BY LAKEDALE APARTMENTS AND LIBERTY APARTMENTS ARE
CROSS-COLLATERALIZED AND CROSS-DEFAULTED, RESPECTIVELY. (4) ASSUMES A
CUT-OFF DATE OF NOVEMBER 1, 2000.
(5) IN THE CASE OF LOANS WITH INTEREST ONLY PERIODS, THE MONTHLY PAYMENT
PRESENTED HEREIN REFLECTS THE AMOUNT DUE DURING THE RESPECTIVE AMORTIZATION
TERMS.
(6) IN THE CASE OF THE ARD LOANS, THE ANTICIPATED REPAYMENT DATE IS ASSUMED TO
BE THE MATURITY DATE FOR THE PURPOSES OF THE INDICATED COLUMN.
(7) ANTICIPATED REPAYMENT DATE.
(8) "YES" MEANS THAT DEFEASANCE IS PERMITTED NOTWITHSTANDING THE LOCKOUT
PERIOD.
(9) PREPAYMENT PROVISION AS OF ORIGINATION:
L (X) = LOCKOUT FOR X YEARS
D (X) = DEFEASANCE FOR X YEARS
YM A% (X) = GREATER OF YIELD MAINTENANCE PREMIUM AND A% PREPAYMENT FOR
X YEARS
O (X) = PREPAYABLE AT PAR FOR X YEARS
A-3
<PAGE>
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a Delaware Corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and perform under
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
B-1-1
<PAGE>
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of the
assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(n) The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
(o) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Seller are pending or contemplated.
(p) The principal place of business and chief executive office of the
Seller is located in Atlanta, Georgia.
B-1-2
<PAGE>
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing Date:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(q) The execution and delivery by the Purchaser of this Agreement, and the
performance and compliance by the Purchaser with the terms of this Agreement
will not: (i) violate the Purchaser's organizational documents; or (ii)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Purchaser is a party or by which it
is bound or which is applicable to it or any of its assets, which default or
breach, in the Purchaser's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Purchaser to perform
its obligations under this Agreement or the financial condition of the
Purchaser.
(r) The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(s) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(t) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(u) There are no actions, suits or proceedings pending or, to the best of
the Purchaser's knowledge, threatened against the Purchaser which, if determined
adversely to the Purchaser, would prohibit the Purchaser from entering into this
Agreement or, in the Purchaser's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Purchaser to
perform its obligations hereunder or the financial condition of the Purchaser.
(v) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings of Mortgage Loan
documents and assignments thereof that are contemplated by the Pooling and
Servicing Agreement to be completed after the Closing Date.
B-2-1
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE OTHERWISE
EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE SELLER REGARDING
THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT AS
EXPRESSLY SET FORTH HEREIN).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (in accordance
with the requirements of this Agreement and the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as of
the respective Due Dates for the Mortgage Loans in November 2000.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage Loan to or at the direction of the Purchaser
free and clear of any and all pledges, liens, charges, security interests,
participation interests and/or other interests and encumbrances. Subject to the
completion of all missing information (including, without limitation, the names
of assignees and endorsees and missing recording information) in all instruments
of transfer or assignment and endorsements, and the completion of all recording
and filing contemplated hereby and by the Pooling and Servicing Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Due Date for such Mortgage
Loan in November 2000 without giving effect to any applicable grace period, nor
was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in November 2000.
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, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and/or are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or a "marked-up" commitment), none of which materially
interferes with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related
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Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan, (d) other
matters to which like properties are commonly subject, none of which materially
interferes with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property which the
Seller did not require to be subordinated to the lien of such Mortgage and which
do not materially interfere with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service the related Mortgage Loan, and (f) if such Mortgage Loan constitutes
a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group (the foregoing
items (a) through (f) being herein referred to as the "Permitted Encumbrances").
The related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name of the assignee and
any related recording information which is not yet available to the Seller) and
constitutes a legal, valid, binding and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of such Mortgage from the relevant
assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in,
subject to applicable law, the property, rights and interests of the related
Borrower described therein; and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not included
in a Mortgage, executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name of the assignee and any related recording
information which is not yet available to the Seller), and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. If an Assignment of Leases exists with respect to any Mortgage
Loan (whether as part of the related Mortgage or separately), then the related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession to collect the rents.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) the related Mortgaged Property has not
been released from the lien of such Mortgage and (c) the related Borrower has
not been released from its obligations under such Mortgage, in whole or in
material part, in each such event in a manner which would materially interfere
with the benefits of the security intended to be provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth in an engineering report prepared in connection with the
origination of such Mortgage Loan, the related Mortgaged Property is, to the
Seller's knowledge (after inquiry of its servicer, which servicer may be an
affiliate of the Seller), free and clear of any damage that would materially and
adversely
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affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists sufficient to effect the
necessary repairs and maintenance). The Seller has not received notice and has
no knowledge of any proceeding pending for the condemnation of all or any
material portion of the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge (based solely on surveys (if any) and/or the lender's title
policy (or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each Mortgage Loan),
as of the date of the origination of each Mortgage Loan, (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current use of such
Mortgaged Property, and (b) no improvements on adjoining properties 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 lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), 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. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless, in the case of clause (b) below, the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available), (a) access to a public road, and (b) that if a survey was
reviewed or prepared in connection with the origination of the related Mortgage
Loan, the area shown on such survey is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
exceptions set forth in Paragraph 13 below, enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby, including, without limitation,
foreclosure or similar proceedings (as applicable for the jurisdiction where the
related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly
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designated and currently so serves or may be substituted in accordance with the
Mortgage and applicable law, and (b) no fees or expenses are payable to such
trustee by the Seller, the Depositor or any transferee thereof except in
connection with a trustee's sale after default by the related Borrower or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12 (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials, lead-based paint
and radon) (a) an environmental site assessment, an environmental site
assessment update or a transaction screen was performed by an independent
third-party environmental consultant with respect to each Mortgaged Property
securing a Mortgage Loan in connection with the origination of such Mortgage
Loan, (b) a report of each such assessment, update or screen, if any (an
"Environmental Report"), has been delivered to the Purchaser, and (c) either:
(i) no such Environmental Report, if any, provides that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related to the
related Borrower was identified as a responsible party for such condition or
circumstance, (B) the related Borrower was required to provide additional
security and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Seller, in its sole discretion, that applicable federal, state
or local governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or circumstance,
(D) such conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (G) the related Borrower or other responsible party
is currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, (H) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions or (I) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had, in the Seller's sole discretion, an
appropriate net worth in light of the environmental matters covered by such
guaranty or indemnity. To the Seller's knowledge, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage for each Mortgage
Loan encumbering the Mortgaged Property requires the related Borrower to comply
with all applicable federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency
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legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by (i) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (i) and (ii)) such limitations or unenforceability will
not render such loan documents invalid as a whole or substantially interfere
with the mortgagee's realization of the principal benefits and/or security
provided thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Borrower with respect to such Mortgage Note,
Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the replacement
cost of the improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. With respect to each Mortgage Loan, the related
Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
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below). In the case of each Mortgage Loan, the related Mortgaged Property is
covered by comprehensive general liability insurance in an amount at least equal
to $1 million.
15. Taxes and Assessments. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there are no
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan that are a lien of priority
equal to or higher than the lien of the related Mortgage and that are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Seller's knowledge, no Borrower under a
Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or based on such other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located (including, without limitation,
when commercially reasonable, a representation of the related Borrower at the
time of origination of the subject Mortgage Loan), the improvements located on
or forming part of each Mortgaged Property securing a Mortgage Loan are in
material compliance with applicable zoning laws and ordinances or constitute a
legal non-conforming use or structure (or, if any such improvement does not so
comply and does not constitute a legal non-conforming use or structure, such
non-compliance and failure does not materially and adversely affect the value of
the related Mortgaged Property as determined by the appraisal performed in
connection with the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from or other agreements with
the ground lessor, a "Ground Lease"), but not by the related fee interest in
such Mortgaged Property or such material portion thereof (the "Fee Interest"),
then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, is
thereafter further assignable by, the Purchaser upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
either has been obtained or cannot be unreasonably withheld); provided that
such Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
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(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give [written]
notice of any default by the lessee to the mortgagee under such Mortgage
Loan. In addition, if required by such Ground Lease, the lessor thereunder
has received notice of the lien of the related Mortgage in accordance with
the provisions of such Ground Lease. Furthermore, such Ground Lease further
provides that no notice of termination given under such Ground Lease is
effective against the mortgagee under such Mortgage Loan unless a copy has
been delivered to such mortgagee in the manner described in such Ground
Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Borrower's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than ten (10)
years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the
related Borrower unless the mortgagee under such Mortgage Loan fails to
cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect to the
leasehold interest will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the Mortgaged Property is located
at the time of the origination of such Mortgage Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
written consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
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19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither the
Seller nor, to the Seller's knowledge, any prior holder of such 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 (other
than amounts paid by the tenant as specifically provided under related lease),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the Borrower under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan or the current ability of the
Borrower to pay principal, interest or any other amounts due under such Mortgage
Loan.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To the Seller's knowledge, except as otherwise set forth on Schedule C-23, and
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal 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 that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from, all
applicable usury laws in effect at its date of origination.
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26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located, customarily performs in the origination of
comparable mortgage loans, the related Borrower was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan; provided that the Mortgage Loans that
are Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price and prepayment
consideration in connection therewith; and provided, further, that any Mortgage
Loan may permit the unconditional release of one or more unimproved parcels of
land to which the Seller did not give any material value in underwriting the
Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage Loan
(other than the Union Capital Mortgage Loans), the Seller inspected, or caused
the inspection of, the related Mortgaged Property.
33. No Material Default. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
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<PAGE>
34. Due-on-Sale. Subject to exceptions set forth in the related Mortgage,
the Mortgage for each Mortgage Loan contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in the
related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $15,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
37. Tax Parcels. Except as described on Schedule C-37 of this Agreement,
each Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related Title Policy or in certain instances
an application has been made to the applicable governing authority for creation
of separate tax lots which shall be effective for the next tax year.
38. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
39. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then (a) the
security agreements, financing statements or other instruments, if any, related
to the Mortgage Loan secured by such Mortgaged Property establish and create a
valid security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related information which is not yet available to the Seller)
executed and delivered in favor of the Trustee constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
C-10
<PAGE>
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its stated maturity date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
42. Servicing Rights. Except as set forth on Schedule C-42 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
43. Recourse. The related Mortgage Loan Documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation or misappropriation of any tenant security deposits, rent,
insurance proceeds or condemnation proceeds. The related Mortgage Loan Documents
contain provisions pursuant to which the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower has agreed to
indemnify the mortgagee for damages resulting from violations of any applicable
environmental laws.
44. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Mortgage Loan
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any material improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the Closing Date, have been complied with
in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and/or financial statements of the related Borrower,
and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related Mortgage
or Mortgage Note provides a grace period for delinquent Monthly Payments no
longer than 15 days from the applicable Due Date (or 5 days from notice to the
related Borrower of the default).
C-11
<PAGE>
49. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. Healthcare Facilities. To the Seller's knowledge, with respect to any
Mortgaged Property securing a Mortgage Loan that is operated as a healthcare
facility, as of origination of such Mortgage Loan, the operator with respect to
such facility held all material certificates, licenses and permits required by
applicable law for the operation of such facility and was in material compliance
with all applicable state and federal laws and regulations. In addition, the
loan documents for such Mortgage Loan provide that all material certificates,
licenses and permits reasonably necessary for the operation of such facility
will continue to be maintained.
C-12
<PAGE>
SCHEDULE C-12
MORTGAGED PROPERTIES AS TO WHICH NO ENVIRONMENTAL TESTING
WAS CONDUCTED IN CONNECTION WITH THE ORIGINATION
OF THE RELATED MORTGAGE LOANS OTHER THAN WITH RESPECT TO
ASBESTOS-CONTAINING MATERIALS, LEAD-BASED PAINT AND RADON
C-12-1
<PAGE>
SCHEDULE C-23
OTHER MORTGAGE LIEN EXCEPTIONS
C-23-1
<PAGE>
SCHEDULE C-28
RELEASES OF MORTGAGED PROPERTIES
C-28-1
<PAGE>
SCHEDULE C-32
INSPECTION EXCEPTIONS
C-32-1
<PAGE>
SCHEDULE C-37
TAX PARCEL EXCEPTIONS
C-37-1
<PAGE>
SCHEDULE C-42
MORTGAGE LOANS SUBJECT
TO THE SERVICING
RIGHTS OF THIRD-PARTIES
C-42-1
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OF THE SELLER
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-CKP1
CERTIFICATE OF SECRETARY OF COLUMN FINANCIAL, INC.
I, Marjorie S. White, hereby certify that I am a duly appointed Secretary
of Column Financial, Inc., a Delaware Corporation ("Column"), and further
certify as follows:
1. Attached hereto as Exhibit A are true and correct copies of the
Certificate of Incorporation and By-Laws of Column, which are in full force and
effect on the date hereof.
2. Attached hereto as Exhibit B are the resolutions of the board of
directors of Column authorizing and approving Column's execution, delivery and
performance of (a) the Mortgage Loan Purchase Agreement, dated as of October 27,
2000 (the "Mortgage Loan Purchase Agreement"), between DLJ Commercial Mortgage
Corp., as purchaser, and Column, as seller, and (b) the corresponding
Indemnification Agreement referred to in the Mortgage Loan Purchase Agreement
(the "Indemnification Agreement"). Such resolutions are in full force and effect
on the date hereof and do not conflict with any other resolutions of the board
of directors of Column in effect on the date hereof.
3. Attached hereto as Exhibit C is a certificate of good standing of Column
issued by the Secretary of State of the State of Delaware within 30 days of the
date hereof, and no event (including, without limitation, any act or omission on
the part of Column) has occurred since the date thereof which has affected the
good standing of Column under the laws of the State of Delaware.
4. Each person who, as an officer or representative of Column, signed the
Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of Column prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of such person appearing on any such document
is his or her genuine signature.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November ___, 2000.
By:______________________________________
Name: Marjorie S. White
Title: Secretary
D-1-1
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-CKP1
CERTIFICATE OF COLUMN FINANCIAL, INC.
In connection with the execution and delivery by Column Financial, Inc.
("Column") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase Agreement dated as of October 27, 2000 (the
"Mortgage Loan Purchase Agreement") between DLJ Commercial Mortgage Corp.
("DLJCMC"), as purchaser, and Column, as seller, and that certain
Indemnification Agreement dated as of October 27, 2000 (the "Indemnification
Agreement"), among Column, DLJCMC, Donaldson, Lufkin & Jenrette Securities
Corporation, Prudential Securities Incorporated, Credit Suisse First Boston
Corporation, McDonald Investments Inc. and Salomon Smith Barney Inc. (together,
the Mortgage Loan Purchase Agreement and the Indemnification Agreement are
referred to as the "Agreements"), the undersigned hereby certifies that (i) the
representations and warranties of Column in the Agreements are true and correct
in all material respects at and as of the date hereof (or, in the case of any
particular representation and warranty set forth in Exhibit C to the Mortgage
Loan Purchase Agreement, as of such other date specifically set forth in such
representation and warranty) with the same effect as if made on the date hereof
(or, in the case of any particular representation and warranty set forth in
Exhibit C to the Mortgage Loan Purchase Agreement, on such other date
specifically set forth in such representation and warranty), and (ii) Column
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Mortgage Loan Purchase
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Mortgage Loan Purchase Agreement.
Certified this ___ day of November, 2000.
COLUMN FINANCIAL, INC.
By:_______________________________
Name:
Title:
D-2A-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION OF LONG, ALDERIDGE & NORMAN,
PURSUANT TO SECTION 7(VI)
November 7, 2000
DLJ Commercial Mortgage Corp. Credit Suisse First Boston Corporation
277 Park Avenue 11 Madison Avenue
New York, New York 10172 New York, New York 10010
Donaldson, Lufkin & Jenrette Moody's Investors Service, Inc.
Securities Corporation 99 Church Street
277 Park Avenue New York, New York 10007
New York, New York 10172
Prudential Securities Incorporated Fitch, Inc.
One New York Plaza One State Street Plaza, 31st Floor
New York, New York 10292 New York, New York 10004
Salomon Smith Barney, Inc. Wells Fargo Bank Minnesota, N.A.
388 Greenwich Street, 11th Floor 45 Broadway, 12th Floor
New York, New York 10013 New York, New York 10006
McDonald Investments, Inc.
800 Superior Avenue
Cleveland, Ohio 44114
RE: DLJ COMMERCIAL MORTGAGE TRUST 2000-CKP1, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2000-CKP1
Ladies and Gentlemen:
We have acted as counsel to Column Financial, Inc. (the "Company") in
connection with the sale of certain mortgage loans (collectively, the "Mortgage
Loans") by the Company to DLJ Commercial Mortgage Corp. ("DLJCMC") pursuant to a
Mortgage Loan Purchase Agreement, dated as of October 27, 2000 (the
"Agreement"), between the Company and DLJCMC and in connection with the delivery
by Company of that certain Indemnification Agreement, dated as of October 27,
2000 (the "Indemnity") among Company, DLJCMC, Donaldson, Lufkin & Jenrette
Securities Corporation, Prudential Securities Incorporated, Salomon Smith
Barney, Inc., McDonald Investments, Inc. and Credit Suisse First Boston
Corporation. This opinion is being delivered to you pursuant to the Agreement.
Capitalized terms not defined herein have the meanings set forth in the
Agreement.
In rendering this opinion letter, we have examined the Agreement, the
Indemnity and such other documents as we have deemed necessary. As to matters of
fact, we have examined and relied upon, without any independent investigation,
representations of the Company contained in the Agreement and in the Certificate
of an Officer of the Seller attached hereto and, where we have deemed
D-3A-1
<PAGE>
appropriate, representations or certifications of parties to the Agreement or
public officials. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all documents submitted
to us as copies. We have assumed that all parties to the Agreement and the
Indemnity other than the Company had the corporate power and authority to enter
into and perform all obligations thereunder. As to such parties, we also have
assumed the due authorization by all requisite corporate action, and the due
execution and delivery and the enforceability of such documents. We have further
assumed the conformity of the Mortgage Loans and related documents to the
requirements of the Agreement and have assumed that the Company is the owner of
the Mortgage Loans.
Based upon and subject to the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing and
in good standing under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as presently
conducted by it, to own and to transfer and convey to DLJCMC the Mortgage Loans
and to enter into and perform its obligations under the Agreement and Indemnity.
2. The Agreement and Indemnity each has been duly and validly authorized,
executed and delivered by the Company and each constitutes the valid, legal and
binding agreement of the Company.
3. No consent, approval, authorization or order of any State of Georgia or
federal court or State of Georgia or federal governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
the Agreement and Indemnity, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in the Agreement,
nor the fulfillment of the terms of or the consummation of any other of the
transactions contemplated by the Agreement and Indemnity, will result in a
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or any State of Georgia or federal statute or regulation
applicable to the Company, or to our knowledge, will conflict with, result in a
breach, violation or acceleration of or constitute a default under, the terms of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or any order of any State of Georgia or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
5. To our knowledge, there are no actions, proceedings, or investigations
pending or threatened against the Company before any State of Georgia, State of
Delaware or federal court, administrative agency or other tribunal (a) asserting
the invalidity of the Agreement or Indemnity, (b) seeking to prevent the
consummation of any of the transactions contemplated in the Agreement or
Indemnity, or (c) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity of, the Agreement or
Indemnity.
Where we have rendered our opinion concerning matters "known to us" or this
letter otherwise refers to our knowledge or our attention, such reference shall
mean only the knowledge of William F. Stevens, Barbara A. McIntyre, W. Gregory
Null, Mindy S. Planer or Janice N. Smith, who are the attorneys in our firm
primarily responsible for our services relating to the Company, and shall not
refer to the knowledge of any other person in any way associated with this firm.
You are advised that
D-3A-2
<PAGE>
we have made no independent investigation or verification of such matters and
have not searched or reviewed the files and records of or relating to Company or
such matters in our office, in the public records, in the possession of Company,
or elsewhere.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of Georgia, the corporate law of the
State of Delaware and the federal law of the United States. We do not express
any opinion concerning the enforceability of the Agreement or the Indemnity.
Any and all opinions rendered by this firm in this opinion letter are
limited to the matters expressly set forth herein; and no opinion is implied or
to be inferred beyond the matters expressly so stated. This opinion is given as
of the date hereof, and we expressly decline any undertaking to revise or update
this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify the
opinion, in whole or in part.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
LONG ALDRIDGE & NORMAN LLP
D-3A-3
<PAGE>
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY & AUSTIN,
PURSUANT TO SECTION 7(VII)
November 7, 2000
DLJ Commercial Mortgage Corp. Salomon Smith Barney Inc.
11 Madison Avenue 388 Greenwich Street, 11th Floor
New York, New York 10010 New York, New York 10013
Donaldson, Lufkin & Jenrette Wells Fargo Bank Minnesota, N.A.
Securities Corporation 45 Broadway, 12th Floor
11 Madison Avenue New York, New York 10006
New York, New York 10010
Moody's Investors Service, Inc.
Prudential Securities Incorporated 99 Church Street
One New York Plaza New York, New York 10007
New York, New York 10292
Fitch, Inc.
McDonald Investments Inc. One State Street Plaza, 31st Floor
800 Superior Avenue New York, New York 10004
Cleveland, Ohio 44114
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Re: DLJ Commercial Mortgage Trust 2000-CKP1, Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column") with
respect to certain matters in connection with the sale by Column, and the
purchase by DLJ Commercial Mortgage Corp. ("DLJCMC"), of a segregated pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), pursuant to
that certain Mortgage Loan Purchase Agreement dated as of October 27, 2000 (the
"Agreement"), between Column and DLJCMC.
This opinion letter is being provided to you pursuant to Section 7(vi) of
the Agreement. Capitalized terms that are used, but not defined, herein have the
respective meanings set forth in, or otherwise assigned to them pursuant to, the
Agreement.
For purposes of this opinion letter, we have reviewed the Agreement. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and
D-3B-1
<PAGE>
representatives of the parties to the Agreement and public officials as we have
deemed relevant or necessary as the basis for such opinions; and we have relied
upon, and assumed the accuracy of, such other documents and records, such
certificates and the statements made in response to such inquiries, with respect
to the factual matters upon which the opinions contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreement, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
the due organization of each of the parties to the Agreement and the valid
existence of each such party in good standing under the laws of its jurisdiction
of organization, (vii) the power and authority of all parties to the Agreement
to enter into, perform under and consummate the transactions contemplated by the
Agreement, without any resulting conflict with or violation of the
organizational documents of any such party or with or of any law, rule,
regulation, order or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreement by the parties thereto, (ix) except to
the extent expressly addressed below, the constitution of the Agreement as the
legal, valid and binding obligation of each party thereto, enforceable against
such party in accordance with its terms, and (x) the absence of any other
agreement that supplements or otherwise modifies the intentions and agreements
of the parties to the Agreement, as expressed therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any
D-3B-2
<PAGE>
agreement that purports or is construed to provide indemnification with respect
to securities law violations.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York
(without regard to conflicts of law principles). In addition, we do not express
any opinion with respect to the tax, securities or "doing business" laws of any
particular jurisdiction, including, without limitation, the State of New York,
or with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that the
Agreement constitutes a valid, legal binding agreement of Column, enforceable
against Column in accordance with its terms.
The opinion expressed herein is being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the closing of Column's sale of
the Mortgage Loans to DLJCMC, pursuant to the Agreement, and may not be relied
on in any manner for any other purpose or by any other person or transmitted to
any other person without our prior consent.
Very truly yours,
D-3B-3
<PAGE>
EXHIBIT D-3C
FORM OF OPINION OF SIDLEY & AUSTIN,
PURSUANT TO SECTION 7(viii)
November 7, 2000
DLJ Commercial Mortgage Corp. Salomon Smith Barney Inc.
11 Madison Avenue 388 Greenwich Street, 11th Floor
New York, New York 10010 New York, New York 10013
Donaldson, Lufkin & Jenrette Wells Fargo Bank Minnesota, N.A.
Securities Corporation 45 Broadway, 12th Floor
11 Madison Avenue New York, New York 10006
New York, New York 10010
Moody's Investors Service, Inc.
Prudential Securities Incorporated 99 Church Street
One New York Plaza New York, New York 10007
New York, New York 10292
Fitch, Inc.
McDonald Investments Inc. One State Street Plaza, 31st Floor
800 Superior Avenue New York, New York 10004
Cleveland, Ohio 44114
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Re: DLJ Commercial Mortgage Trust 2000-CKP1, Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1
Ladies and Gentlemen:
We have acted as special counsel to DLJ Commercial Mortgage Corp. (the
"Depositor") and Column Financial, Inc. ("Column") with respect to certain
matters in connection with the following transactions (collectively the
"Transactions"):
(ii) the sale by Column, and the purchase by the Depositor, of a
segregated pool of multifamily and commercial mortgage loans (collectively,
the "Column Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of October 27, 2000 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser (such
Transaction, the "Column Sale");
(iii) the sale by Prudential Mortgage Capital Funding LLC ("PMCF"),
and the purchase by the Depositor, of a second segregated pool of
multifamily and commercial mortgage loans (the "PMCF Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated
D-3C-1
<PAGE>
as of October 27, 2000 (the "PMCF Mortgage Loan Purchase Agreement"),
between PMCF as seller, Prudential Mortgage Capital Company, LLC ("PMCC")
as the additional party and the Depositor as purchaser (such Transaction,
the "PMCF Sale");
(iv) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a third segregated pool of multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of October 27, 2000 (the "KeyBank
Mortgage Loan Purchase Agreement"), between KeyBank as seller and the
Depositor as purchaser (such Transaction, the "KeyBank Sale");
(v) the creation of a trust fund (the "Trust Fund"), and the issuance
of an aggregate $1,289,918,771 Certificate Principal Balance of Commercial
Mortgage Pass-Through Certificates, Series 2000-CKP1 (the "Certificates"),
consisting of 19 classes designated Class S, Class A-1A, Class A-1B, Class
A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class C, Class D,
Class E and Class R pursuant to the Pooling and Servicing Agreement dated
as of November 1, 2000 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, Key Corporate Capital Inc. d/b/a Key Commercial
Mortgage, as master servicer and special sub-servicer, Midland Loan
Services, Inc., as special servicer, and Wells Fargo Minnesota, N.A., as
trustee (the "Trustee");
(vi) the transfer of the Column Mortgage Loans, the PMCF Mortgage
Loans and the KeyBank Mortgage Loans (collectively, the "Mortgage Loans")
by the Depositor to the Trust Fund, pursuant to the Pooling and Servicing
Agreement, in exchange for the Certificates (such Transaction, the
"Transfer to the Trust");
(vii) the sale by the Depositor, and the purchase by Donaldson, Lufkin
& Jenrette Securities Corporation ("DLJSC"), Prudential Securities
Incorporated ("Prudential"), Credit Suisse First Boston Corporation
("CSFB"), McDonald Investments Inc. ("McDonald") and Salomon Smith Barney
Inc. ("SSBI"; and, collectively with DLJSC, Prudential, CSFB and McDonald,
in such capacity, the "Underwriters") of the Class A-1A, Class A-1B, Class
A-2, Class A-3, Class A-4, Class B-1, Class B-2 and Class B-3 Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of October 27, 2000 (the "Underwriting
Agreement"), between the Depositor and the Underwriters; and
(viii) the sale by the Depositor, and the purchase by DLJSC,
Prudential and CSFB (collectively, in such capacity, the "Placement
Agents") of the Class S, Class B-4, Class B-5, Class B-6, Class B-7, Class
B-8, Class B-9, Class C, Class D, Class E and Class R Certificates
(collectively, the "Privately Offered Certificates"), pursuant to the
Certificate Purchase Agreement dated as of October 27, 2000 (the
"Certificate Purchase Agreement"), between the Depositor and the Placement
Agents.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement, the
PMCF Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
D-3C-2
<PAGE>
We have been asked by our clients to provide our opinion to you as to
whether:
(i) in connection with any bankruptcy proceedings instituted by or on
behalf of Column under the Federal Bankruptcy Code, as amended (Title 11 of
the United States Code)(the "Bankruptcy Code"), the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from Column
to the Depositor rather than as a loan secured by the Column Mortgage
Loans, such that the Column Mortgage Loans would not, on such basis,
constitute property of Column's estate under Section 541(a)(1) of the
Bankruptcy Code or property of Column subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding; and
(ii) in connection with any bankruptcy proceedings instituted by or on
behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
For purposes of this opinion letter, we have reviewed the following
documents and all exhibits thereto (collectively, the "Relevant Documents"):
(i) the Agreements;
(ii) a certificate of Column regarding the Column Sale, a copy of
which is attached hereto;
(iii) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto; and
(iv) a certificate of DLJSC regarding its sales of the Certificates
purchased by it, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
underlying the assumptions set forth below or that are otherwise factually
relevant to the opinions expressed herein and contained in the Agreements, (ii)
the legal capacity of natural persons, (iii) the genuineness of all signatures,
(iv) the authenticity of all documents submitted to us as originals, (v) the
conformity to authentic originals of all documents submitted to us as certified,
conformed or photostatic copies, (vi) the due organization of all parties to
each of the Agreements and the valid existence of each such party in good
standing under the laws of its jurisdiction of organization, (vii) the power and
authority of the parties to each of the Agreements to enter into, perform under
and consummate the transactions contemplated by such Agreement, without any
resulting conflict with or violation of the organizational documents of any such
party or with or of any law, rule, regulation, order or decree applicable to any
such party or its assets,
D-3C-3
<PAGE>
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by the parties thereto, (ix) the
constitution of each Agreement as the legal, valid and binding obligation of
each party thereto, enforceable against such party in accordance with its terms,
(x) compliance with the Agreements by all parties thereto, and (xi) the
conformity, to the requirements of the Column Mortgage Loan Purchase Agreement
and the Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages
and the other documents delivered to the Trustee by, on behalf of or at the
direction of the Depositor and Column.
In addition, we have assumed that the following statements are true and the
following actions (except as otherwise indicated) have occurred on the date
hereof based upon representations or other provisions in the Relevant Documents:
1. DLJSC either has sold, or is actively attempting and expects to sell, to
third parties unrelated to Column, the Depositor or any of their affiliates,
substantially all of the Certificates acquired by DLJSC pursuant to the
Underwriting Agreement and the Certificate Purchase Agreement.
2. The transfer of the Column Mortgage Loans by Column to the Depositor,
the transfer of the Mortgage Loans by the Depositor to the Trust and the sale of
the Certificates by the Depositor to the Underwriters and the Placement Agents,
as provided in the Agreements, are contemporaneous exchanges in which Column and
the Depositor, respectively, receive new value and consideration constituting
reasonably equivalent value and fair consideration.
3. Following the Column Sale and the Transfer to the Trust, neither Column
nor the Depositor has the right to unilaterally modify or alter the terms of
such Transactions. The consideration received by Column in connection with its
sale of the Column Mortgage Loans to the Depositor, and by the Depositor in
connection with its sales of the Certificates to the Underwriters and the
Placement Agents, are, in each case, fixed and not subject to adjustment
following the Closing Date.
4. No provision exists whereby the terms of the Certificates, the Pooling
and Servicing Agreement or the Column Mortgage Loan Purchase Agreement may be
unilaterally modified by Column or the Depositor following the Column Sale and
the Transfer to the Trust.
5. Pursuant to the Column Mortgage Loan Purchase Agreement, it is the
intention of Column and the Depositor that the Column Sale constitute a sale by
Column to the Depositor of all of Column's right, title and interest in and to
the Column Mortgage Loans, and pursuant to the Pooling and Servicing Agreement,
it is the intention of the Depositor and the Trustee that the Transfer to the
Trust constitute an absolute transfer by the Depositor to the Trust of all of
the Depositor's right, title and interest in and to the Mortgage Loans. Pursuant
to the Column Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement, each of Column and the Depositor will treat the Column Sale as a sale
(as opposed to a secured loan) under generally accepted accounting principles in
the United States ("GAAP"), and pursuant to the Pooling and Servicing Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement, the Depositor
will treat the Transfer to the Trust and the sale of the Certificates by the
Depositor to the Underwriters and the Placement Agents as a sale (as opposed to
a secured loan) under GAAP.
6. After the completion of the Column Sale and the Transfer to the Trust,
none of Column, the Depositor or any of their affiliates has (i) the right to
repurchase or otherwise to cause the reconveyance to itself of any Mortgage Loan
or (ii) any obligation to repurchase or otherwise remove
D-3C-4
<PAGE>
any Mortgage Loan from the Trust (other than, in the case of Column, in
connection with a material breach of certain representations, warranties and
covenants made by such party with respect to a Column Mortgage Loan in the
Column Mortgage Loan Purchase Agreement).
7. There is no other agreement, arrangement or understanding, written or
otherwise (including, without limitation, with respect to the Column Sale or the
Transfer to the Trust), that supplements or otherwise modifies the intentions
and agreements of the parties to the Agreements, as expressed therein.
8. After the completion of the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor will take any action inconsistent with the
Trust's ownership of the Mortgage Loans.
9. Immediately before the Column Sale, Column owned the Column Mortgage
Loans free and clear of any adverse claims or other interests. Immediately
before the PMCF Sale, PMCF owned the PMCF Mortgage Loans free and clear of any
adverse claims or other interests. In connection with the PMCF Sale, PMCF will
have validly and effectively conveyed to the Depositor all legal and beneficial
ownership in and to each PMCF Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance. Immediately before the KeyBank
Sale, KeyBank owned the KeyBank Mortgage Loans free and clear of any adverse
claims or other interests. In connection with the KeyBank Sale, KeyBank will
have validly and effectively conveyed to the Depositor all legal and beneficial
ownership in and to each KeyBank Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The Depositor has not
transferred and will not transfer its right, title and interest in and to any
Mortgage Loan except to the Trustee as contemplated by the Pooling and Servicing
Agreement. No adverse claims or other interests with respect to any Mortgage
Loan were created by or through the Depositor, except as contemplated by the
Agreements.
10. Each of Column and the Depositor has taken all actions required under
applicable law to effectuate the Column Sale. Each of the Depositor and the
Trustee has taken (or the Pooling and Servicing Agreement provides that, within
a reasonable time period following the Closing Date, each of them will be
required to take) all actions required under applicable law to effectuate the
Transfer to the Trust.
11. In connection with the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor had any intent to hinder, delay or defraud its
present or future creditors.
12. After giving effect to the Column Sale and the Transfer to the Trust,
the value of the assets of each of Column and the Depositor, respectively,
either taken at their present fair salable value or at fair valuation, exceeded
the amount of the debts and obligations, including contingent and unliquidated
debts and obligations, of Column and the Depositor, respectively.
13. After giving effect to the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor was left with unreasonably small assets or
capital with which to engage in and conduct its business.
14. After giving effect to the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor intends to, or believes that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
D-3C-5
<PAGE>
There is limited judicial authority relating to the issue of when a
transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or transferor or by the recovery of the consideration (if any)
given in connection with the purchase or transfer and (v) in what circumstances
(if any) the seller or transferor has the right or the obligation to repurchase
or otherwise reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the Bankruptcy Code and the law of the State of New York to
the extent that it may be applicable thereunder. We do not express any opinion
on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further qualifications set
forth below, and the reasoned analysis of analogous case law (although there is
no precedent directly on point), it is our opinion that:
1. In connection with any bankruptcy proceedings instituted by or on behalf
of Column under the Bankruptcy Code, the Column Sale would be treated by a court
as a true sale of the Column Mortgage Loans from Column to the Depositor, rather
than as a loan secured by the Column Mortgage Loans, such that the Column
Mortgage Loans would not, on such basis, constitute property of Column's estate
under Section 541(a)(1) of the Bankruptcy Code or property of Column subject to
the automatic stay provisions of Section 362(a) of the Bankruptcy Code that
would be applicable to the property of Column in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by or on behalf
of the Depositor under the Bankruptcy Code, the Transfer to the Trust would be
treated by a court as an absolute transfer of the Mortgage Loans from the
Depositor to the Trust, rather than as a loan secured by the Mortgage Loans,
such that the Mortgage Loans would not, on such basis, constitute property of
the Depositor's estate under section 541(a)(1) of the Bankruptcy Code or
property of the Depositor subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of the
Depositor in such a proceeding.
Our opinion is subject to the qualifications that (i) the assumptions set
forth herein are and continue to be true in all respects relevant to this
opinion, (ii) there are no additional facts that would affect the validity of
the assumptions set forth herein or upon which this opinion is based, (iii) any
claim contrary to or inconsistent with any opinion expressed herein made in any
judicial proceeding will be opposed and litigated to a final resolution by one
or more persons or entities with standing to do so, (iv) such case is properly
presented and argued, and (v) the law is properly applied.
D-3C-6
<PAGE>
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
D-3C-7
<PAGE>
EXHIBIT D-3D
FORM OF LETTER OF SIDLEY & AUSTIN,
PURSUANT TO SECTION 7(IX)
November 7, 2000
DLJ Commercial Mortgage Corp. McDonald Investments Inc.
11 Madison Avenue 800 Superior Avenue
New York, New York 10010 Cleveland, Ohio 44114
Donaldson, Lufkin & Jenrette Salomon Smith Barney Inc.
Securities Corporation 388 Greenwich Street, 11th Floor
11 Madison Avenue New York, New York 10013
New York, New York 10010
Prudential Securities Incorporated Credit Suisse First Boston Corporation
One New York Plaza 11 Madison Avenue
New York, New York 10292 New York, New York 10010
Re: DLJ Commercial Mortgage Trust 2000-CKP1, Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1
Ladies and Gentlemen:
We have, with the knowledge and consent of all the parties involved, acted
as special counsel to Column Financial, Inc. ("Column"), DLJ Commercial Mortgage
Corp. (the "Depositor"), Donaldson, Lufkin & Jenrette Securities Corp.
("DLJSC"), Prudential Securities Incorporated ("Prudential"), Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald") and
Salomon Smith Barney Inc. (SSBI") with respect to certain matters in connection
with the following transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on Form
S-3 (No. 333-82275) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Act 1933, as amended (the "Securities Act"), certain
offerings of commercial mortgage pass-through certificates evidencing
interests in trust funds established by the Depositor;
(ix) the sale by Column, and the purchase by the Depositor, of a
segregated pool of multifamily and commercial mortgage loans (collectively,
the "Column Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of October 27, 2000 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser;
D-3C-1
<PAGE>
(x) the sale by Prudential Mortgage Capital Funding, LLC ("PMCF"), and
the purchase by the Depositor, of a second segregated pool of multifamily
and commercial mortgage loans (the "PMCF Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of October 27, 2000 (the "PMCF
Mortgage Loan Purchase Agreement"), between PMCF as seller, Prudential
Mortgage Capital Company, LLC ("PMCC") as the additional party and the
Depositor as purchaser;
(xi) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a third segregated pool of multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of October 27, 2000 (the "KeyBank
Mortgage Loan Purchase Agreement"), between KeyBank as seller and the
Depositor as purchaser;
(xii) the creation of a trust fund (the "Trust Fund"), and the
issuance of an aggregate $1,289,918,771 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1 (the
"Certificates"), consisting of 19 classes designated Class S, Class A-1A,
Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9,
Class C, Class D, Class E and Class R, pursuant to the Pooling and
Servicing Agreement dated as of November 1, 2000 (the "Pooling and
Servicing Agreement"), among the Depositor as depositor, Key Corporate
Capital Inc. d/b/a Key Commercial Mortgage, as master servicer and special
sub-servicer, Midland Loan Services, Inc., as special servicer, and Wells
Fargo Bank Minnesota, N. A., as trustee (in such capacity, the "Trustee");
(xiii) the transfer of the Column Mortgage Loans, the PMCF Mortgage
Loans and the KeyBank Mortgage Loans (collectively, the "Mortgage Loans")
by the Depositor to the Trust Fund, pursuant to the Pooling and Servicing
Agreement, in exchange for the Certificates; and
(xiv) the sale by the Depositor, and the purchase by DLJSC,
Prudential, CSFB, McDonald and SSBI (collectively, in such capacity, the
"Underwriters"), of the Class A-1A, Class A-1B, Class A-2, Class A-3, Class
A-4, Class B-1, Class B-2 and Class B-3 Certificates (collectively, the
"Publicly Offered Certificates"), pursuant to the Underwriting Agreement
dated as of October 27, 2000 (the "Underwriting Agreement"), between the
Depositor and the Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the Column
Mortgage Loan Purchase Agreement, the PMCF Mortgage Loan Purchase Agreement and
the KeyBank Mortgage Loan Purchase Agreement are collectively referred to herein
as the "Agreements". Capitalized terms not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement and, to the extent not
defined therein, in the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated October 17, 2000, relating to
publicly offered mortgage pass-through certificates evidencing interests in
trust funds established by the
D-3C-2
<PAGE>
Depositor (the "Basic Prospectus"); and the Prospectus Supplement, dated October
27, 2000, specifically relating to the Trust Fund and the Publicly Offered
Certificates (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"). In addition, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents and records as we have deemed relevant or necessary as the basis for
rendering this letter; we have obtained such certificates from and made such
inquiries of officers and representatives of the parties to the Agreements and
public officials as we have deemed relevant or necessary as the basis for
rendering this letter; and we have relied upon, and assumed the accuracy of,
such other documents and records, such certificates and the statements made in
response to such inquiries, with respect to the factual matters upon which the
statements made in this letter are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of all parties to each of the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the due authorization by all
necessary action, and the due execution and delivery, of the Agreements by the
parties thereto, (viii) the constitution of each of the Agreements as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, (ix) compliance with the Agreements by the
parties thereto, (x) the conformity, to the requirements of the Column Mortgage
Loan Purchase Agreement, the PMCF Mortgage Loan Purchase Agreement, the KeyBank
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement, of the
Mortgage Notes, the Mortgages and the other documents delivered to the Trustee
by, on behalf of, or at the direction of, the Depositor and Column, (xi) the
conformity of the text of each document filed with the Commission through the
Commission's Electronic Data Gathering, Analysis and Retrieval System to the
printed documents reviewed by us, and (xii) the absence of any other agreement
that supplements or otherwise modifies the intentions and agreements of the
parties to the Agreements, as expressed therein. In making the statements set
forth below, we do not express any view concerning the laws of any jurisdiction
other than the federal laws of the United States of America.
We are delivering this letter in our capacity as special counsel to the
Depositor, Column and the Underwriters. In the course of our acting in such
capacity, we have generally reviewed and discussed with certain representatives
of the Depositor, Column, the Underwriters and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Registration Statement and the Prospectus, other than any documents
or information included therein solely by incorporation by reference (all such
documents and information so incorporated by reference shall be referred to
herein as the "Excluded Information"), and we have reviewed certain loan
summaries prepared by Column in respect of the Column Mortgage Loans and, in the
case of each Column Mortgage Loan with a Cut-off Date Balance in excess of $27.5
million, the related Mortgage Note and Mortgage. While we have made no
independent check or verification of, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, nothing
has come to our attention that causes us to believe that (a) the Registration
Statement (exclusive of the Excluded Information therein, as to which we express
no view or belief), as of its effective date, contained an untrue statement of a
D-3C-3
<PAGE>
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (b) the Prospectus
(exclusive of the Excluded Information therein, as to which we express no view
or belief), as of the date of the Prospectus Supplement or as of the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that we express no view or belief as to (x) any financial statements,
schedules and/or other numerical, financial or statistical data set forth or
referred to therein or omitted therefrom or (y) any information contained in or
omitted from the Prospectus regarding the nature and characteristics of the PMCF
Mortgage Loans, the KeyBank Mortgage Loans and/or the Borrowers and Mortgaged
Properties relating to the PMCF Mortgage Loans and the KeyBank Mortgage Loans.
In that connection, we advise you that we have relied, to the extent that we may
properly do so in the discharge of our professional responsibilities as
experienced securities law practitioners, upon the judgment and statements of
officers and representatives of the Depositor, Column and the Underwriters in
connection with the determination of materiality.
When used in this letter, the term "attention" or words of similar import
mean the conscious awareness of facts or other information of the Sidley &
Austin attorneys currently practicing law with this firm who have been involved
in any material respect in representing any of the Depositor, Column or the
Underwriters in connection with the Transactions. We call to your attention
that, with your knowledge and consent, except as described above, such Sidley &
Austin attorneys have not examined or otherwise reviewed any of the Mortgage
Files, any particular documents contained in such files or any other documents
with respect to the Mortgage Loans for purposes of delivering this letter.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the views or belief expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
D-3C-4
<PAGE>
EXHIBIT M-2
FORM OF KEYBANK MORTGAGE LOAN PURCHASE AGREEMENT
[See Attached]
M-2-1
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 27, 2000, between KeyBank National Association, a
national banking association ("KeyBank"), as seller (in such capacity, together
with its successors and permitted assigns hereunder, the "Seller") and DLJ
Commercial Mortgage Corp., a Delaware corporation ("DLJCMC"), as purchaser (in
such capacity, together with its successors and permitted assigns hereunder, the
"Purchaser").
RECITALS
KeyBank desires to sell, assign, transfer, set over and otherwise convey to
DLJCMC, without recourse, and DLJCMC desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof.
DLJCMC intends to create a trust (the "Trust"), the primary assets of which
will be a segregated pool of multifamily and commercial mortgage loans that
includes the Mortgage Loans. Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund" will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Moody's Investors Service, Inc. and Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of November 1, 2000 (the "Pooling and Servicing Agreement"), among
DLJCMC, as depositor (in such capacity, the "Depositor"), Key Corporate Capital
Inc. d/b/a Key Commercial Mortgage, as master servicer (in such capacity, the
"Master Servicer") and as special sub-servicer (in such capacity the "Special
Sub-Servicer"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer"), and Wells Fargo Bank Minnesota, N.A., trustee (the "Trustee"),
relating to the issuance of DLJCMC's Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings assigned to them
in the Pooling and Servicing Agreement as in full force and effect on the
Closing Date (as defined in Section 1 hereof). It is anticipated that DLJCMC
will transfer the Mortgage Loans to the Trust contemporaneously with its
purchase of the Mortgage Loans hereunder.
DLJCMC intends to sell the Registered Certificates to Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), Prudential Securities Incorporated
("PSI"), Credit Suisse First Boston Corporation ("CSFB"), Salomon Smith Barney
Inc. ("SSBI") and McDonald Investments Inc. ("McDonald"), pursuant to an
underwriting agreement, dated as of the date hereof (the "Underwriting
Agreement"), among DLJCMC, DLJSC, PSI, CSFB, SSBI and McDonald; and DLJCMC
intends to sell the remaining Certificates (the "Non-Registered Certificates")
to DLJSC, PSI and CSFB, pursuant to a certificate purchase agreement, dated as
of
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the date hereof (the "Certificate Purchase Agreement"), between DLJCMC, DLJSC,
PSI and CSFB. The Registered Certificates are more fully described in the
prospectus dated October 17, 2000 (the "Basic Prospectus"), and the supplement
to the Basic Prospectus dated October 27, 2000 (the "Prospectus Supplement";
and, together with the Basic Prospectus, the "Prospectus"), as each may be
amended or supplemented at any time hereafter. The Non-Registered Certificates
are more fully described in the private placement memorandum dated October 27,
2000 (the "Memorandum"), as it may be amended or supplemented at any time
hereafter.
KeyBank will indemnify DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald and certain
related parties with respect to the disclosure regarding the Mortgage Loans and
contained in the Prospectus, the Memorandum and certain other disclosure
documents and offering materials relating to the Certificates, pursuant to an
indemnification agreement, dated the date hereof (the "Indemnification
Agreement"), among KeyBank, DLJCMC, DLJSC, PSI, CSFB, SSBI and McDonald.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 20. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on November 7, 2000 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). As of the
close of business on the respective Due Dates for the Mortgage Loans in November
2000 (individually and collectively, the "Cut-off Date"), the Mortgage Loans
will have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before such date, whether or not
received, of $366,496,067, subject to a variance of plus or minus 5% (the
"Aggregate Cut-off Date Balance"). The purchase price for the Mortgage Loans
shall be as set forth in, or calculated in accordance with, the Term Sheet for
the Joint Conduit Securitizations dated ____, 2000 between DLJSC, PSI, Column
Financial Inc., Prudential Mortgage Capital Company, LLC and KeyBank (the "Term
Sheet"), and the Purchaser shall pay such purchase price to the Seller on the
Closing Date by wire transfer in immediately available funds or by such other
method as shall be mutually acceptable to the parties hereto.
SECTION 21. Conveyance of the Mortgage Loans.
(a) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, the Seller does hereby sell, assign, transfer, set
over and otherwise convey to the Purchaser, without recourse, all of the right,
title and interest of the Seller in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut off Date (other than scheduled payments of interest and principal due on
or before the Cut-off Date), together with all of the right, title and interest
of the Seller in and to the proceeds of any related title, hazard or other
insurance policies and any escrow, reserve or other comparable accounts related
to the Mortgage Loans and required for the ongoing administration and servicing
of the Mortgage Loans ("Reserves").
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(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any Additional Collateral (other than Reserves)
with respect to each Mortgage Loan. In addition, with respect to each Mortgage
Loan as to which any Additional Collateral is in the form of a Letter of Credit
as of the Closing Date, the Seller shall cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Purchaser or its designee the Seller's rights as the
beneficiary thereof and drawing party thereunder. Unless the Purchaser notifies
the Seller in writing to the contrary, the designated recipient of the items
described in the second preceding sentence, and the designated beneficiary under
each Letter of Credit referred to in the preceding sentence, shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee,
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee of
any notice of any remaining deficiencies to such Mortgage File as of
February 1, 2002, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by Section 2(d) and the Pooling and Servicing Agreement,
record all instruments of transfer and assignment with respect to the
subject Mortgage Loan;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
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(v) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; (ii) any other documents prepared or
delivered by the related Borrowers to the Seller with respect to the Mortgage
Loans and used by the Seller to prepare or assist in preparing Exhibits A-1 and
A-2 to the Prospectus Supplement; and (iii) all Reserves in the possession or
under the control of the Seller that relate to the Mortgage Loans. Unless the
Purchaser notifies the Seller in writing to the contrary, the designated
recipient of the items described in clauses (i), (ii) and (iii) of the preceding
sentence shall be the Master Servicer.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Mortgage Loans that are
required to be recorded or filed, as the case may be, under the Pooling and
Servicing Agreement; provided that the Seller shall not be responsible for
actually recording or filing any such assignments or other instruments of
transfer or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan) and to reflect
the Mortgage Loans as property of the Purchaser.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
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before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
SECTION 22. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4, except as expressly
set forth in Section 5.
SECTION 23. Representations, Warranties and Covenants of the Seller and the
Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2. The respective representations and warranties of the parties hereto
set forth in Exhibits B-1 and B-2 are hereinafter referred to collectively as
the "Corporate Representations".
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, DLJSC, PSI, CSFB, SSBI and McDonald) who may be entitled to
any commission or compensation in connection with the sale to the Purchaser of
the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), by the Seller
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit B-1 and Exhibit C to this Agreement. From and
after the date of substitution, each Replacement Mortgage Loan, if any, shall be
deemed to constitute a "Mortgage Loan" hereunder for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in or made pursuant to this Section 4 shall survive delivery of the
respective Mortgage Files
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to the Purchaser or its designee and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement or
assignment. With respect to the Corporate Representations, such survival shall
continue for so long as any of the Mortgage Loans remains outstanding.
SECTION 24. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller thereof in writing and request
that the Seller correct or cure such Breach or Document Defect. Within 90 days
of the earlier of discovery or receipt of written notice by the Seller that
there has been a Material Breach or a Material Document Defect (such 90-day
period, the "Initial Resolution Period"), the Seller shall (i) cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects or (ii) repurchase each affected Mortgage Loan (each, a "Defective
Mortgage Loan") at the related Purchase Price in accordance with the terms
hereof and, if applicable, the terms of the Pooling and Servicing Agreement,
with payment to be made in accordance with the reasonable directions of the
Purchaser; provided that if the Seller shall certify in writing to the Purchaser
(i) that any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (a
"Qualified Mortgage"), (ii) that such Material Breach or Material Document
Defect, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the correction or cure of such Material Breach or
Material Document Defect, as the case may be, within the applicable Initial
Resolution Period, (iv) what actions the Seller is pursuing in connection with
the correction or cure thereof, and (v) that the Seller anticipates that such
Material Breach or Material Document Defect, as the case may be, will be cured
within an additional period not to exceed the applicable Resolution Extension
Period (as defined below), then the Seller shall have an additional period equal
to the applicable Resolution Extension Period to complete such cure or, failing
such, to repurchase the Defective Mortgage Loan; and provided, further, that, if
the Seller's obligation to repurchase any Defective Mortgage Loan as a result of
a Material Breach or Material Document Defect arises within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the Defective Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f)), and if the Defective Mortgage Loan is still
subject to the Pooling and Servicing Agreement, the Seller may, at its option,
in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no
later than such repurchase would have to have been completed), (i) replace such
Defective Mortgage Loan with one or more substitute mortgage loans that
individually and collectively satisfy the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement. Any such repurchase or replacement of a
Defective Mortgage Loan shall be on a whole loan, servicing released basis. The
Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach or Material Document Defect, but if the Seller
discovers a Material Breach or Material Document Defect with respect to a
Mortgage Loan, it will notify the Purchaser. For purposes of remediating a
Material Breach or
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Material Document Defect with respect to any Mortgage Loan, "Resolution
Extension Period" shall mean the 90-day period following the end of the
applicable Initial Resolution Period.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of the related Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto; provided that no such termination
shall be effected unless and until the Purchaser has received from the Seller
(i) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates;
and provided, further, that the Seller may, at its option, purchase the entire
subject Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased or replaced. If the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph, then, for purposes of (i) determining whether
any Breach or Document Defect is a Material Breach or Material Document Defect,
as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
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If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser with respect to such Breach or Document
Defect.
(b) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser shall
have executed and delivered such instruments of transfer or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder.
SECTION 25. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 875 Third Avenue,
New York, New York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform
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all duties and obligations required to be complied with or performed by it
after the Closing Date;
(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement;
(vii) The Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 26. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement, duly executed by the Purchaser and the Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald and the Rating Agencies
(collectively, for purposes of this Section 7, the "Interested Parties")
may rely, attaching thereto as exhibits (A) the resolutions of the board of
directors of the Seller authorizing the Seller's entering into the
transactions contemplated by this Agreement, and (B) the organizational
documents of the Seller;
(iv) A certificate of good standing with respect to the Seller issued
by the Comptroller of the Currency not earlier than 30 days prior to the
Closing Date, and upon which the Interested Parties may rely;
(v) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated ----------- the Closing Date, and upon which the
Interested Parties may rely;
(vi) A written opinion of Robert C. Bowes, Esq., associate general
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be substantially in
the form of Exhibit D-3A hereto (with such additions, deletions or
modifications as may be required by ------------ either Rating Agency);
(vii) A written opinion of Conlin, McKenney & Philbrick, P.C., special
Michigan counsel for the Seller, dated the Closing Date and addressed to
the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3B
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hereto (with such additions, deletions or modifications as may be required
by either Rating Agency).
(viii) A written opinion of Polsinelli Shalton & Welte, P.C., special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be substantially in
the form of Exhibit D-3C hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(ix) A written opinion of Phillips Lytle, Hitchcock, Blaine & Huber
LLP, special New York counsel for the Seller, dated the Closing Date and
addressed to the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3D hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(x) A letter from Polsinelli Shalton & Welte, P.C., special counsel
for the Seller, dated the Closing Date and addressed to the Interested
Parties (other than the Rating Agencies), which letter shall be
substantially in the form of Exhibit D-3E hereto;
(xi) One or more comfort letters from Arthur Andersen LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, DLJCMC, DLJSC, PSI, CSFB, SSBI and
McDonald, stating in effect that, using the assumptions and methodology
used by DLJCMC, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Mortgage Loans
set forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, compared the results of their calculations to the corresponding
items in any preliminary Prospectus Supplement and the Prospectus
Supplement, respectively, and found each such number and percentage set
forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, respectively, to be in agreement with the results of such
calculations; and
(xii) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 27. Costs. The costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated pursuant to the terms of the
Term Sheet.
SECTION 28. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or ailed, by registered mail, postage prepaid, by overnight mail or
courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 11 Madison Avenue,
New York New York, 10010, Attention: N. Dante LaRocca, facsimile number (212)
325-8105, or such other address as may be designated by the Purchaser to the
Seller in writing, or, if to the Seller, addressed to the Seller at 911 Main
Street, Suite 1500, Kansas City, Missouri 64105, facsimile number (816)
221-8848, Attention: E. J. Burke, with a copy to: 127 Public Square, Cleveland,
Ohio 44114, Attention: Robert C. Bowes, facsimile
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number (216) 689-5681, or such other address as may be designated by the Seller
to the Purchaser in writing.
SECTION 29. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 30. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by DLJCMC to the Trustee of its interests in the
Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of Ohio Uniform Commercial Code, the
New York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; and (e) notifications to, and acknowledgments, receipts
or confirmations from, persons or entities holding such property, shall be
deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Purchaser for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 31. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein
11
<PAGE>
by reference or contained in the certificates of officers of the Seller
delivered pursuant hereto, shall remain operative and in full force and effect
and shall survive delivery of the Mortgage Loans by the Seller to the Purchaser,
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
SECTION 32. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 33. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Purchaser and
the Seller each hereby irrevocably (i) submits to the jurisdiction of any New
York State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives, to the fullest possible extent, the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 34. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 35. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto,
DLJCMC is expressly authorized to assign its rights and obligations under this
Agreement, in whole or in part, to the Trustee for the benefit of the registered
holders and beneficial owners of the Certificates. To the extent of any such
assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
12
<PAGE>
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 36. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 37. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 2. Entire Agreement. Except as otherwise expressly contemplated
hereby, this Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with
respect to such matters.
[SIGNATURE PAGE FOLLOWS]
13
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
KEYBANK NATIONAL ASSOCIATION
By:
-------------------------------
Name:
Title:
DLJ COMMERCIAL MORTGAGE CORP.
By:
-------------------------------
Name:
Title:
<PAGE>
<TABLE>
Exhibit A
MORTGAGE LOAN SCHEDULE
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates Series 2000-CKP1
<CAPTION>
Original Cut-off Date
Principal Principal
# Property Name Address City State Zip Code Balance Balance (4)
--- ------------- ------- ---- ----- -------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
11 Page Field Commons 5043 South Cleveland Fort Myers FL 33907 25,400,000 25,325,706
Avenue
12 Poly Foam(2A) 1311 Majestic Drive Fremont OH 43420 9,350,000 9,332,630
13 Poly-Foam International, 1411 Majestic Drive Fremont OH 43420 8,550,000 8,533,752
Inc.(2A)
15 Sterling University 4500 Burbank Drive Baton Rouge LA 70820 14,640,000 14,640,000
Crescent
16 Oakbrook Apartments 5055 Nicholson Drive Baton Rouge LA 70820 14,385,000 14,385,000
19 Chandler Sunset Plaza Northeast Corner of Ray Chandler AZ 85226 14,000,000 13,960,297
and Rural Roads
21 Railway Express 900 Second Street, N.E. Washington DC 20002 12,600,000 12,534,362
Building
22 Hillcroft Apartments 10 Clapboard Ridge Road Danbury CT 06811 12,400,000 12,356,185
27 Silverado Ranch Center 9715, 9725, 9775, 9785 Las Vegas NV 89123 11,600,000 11,587,542
S. Maryland Parkway
29 Carlton Village 3331 Route 94 South Hardyston Township NJ 07419 11,500,000 11,487,650
Apartments
31 2200 First Avenue South 2200 First Avenue South Seattle WA 98134 10,500,000 10,482,959
36 Westgate Crossing 660 Spartan Boulevard Spartanburg SC 29301 9,900,000 9,882,379
Shopping Center
39 Roseland Shopping 3225 Route 364 Canandaigua NY 14424 9,676,000 9,644,137
Center
44 Twelve Oaks Shopping 5500 Abercorn Street Savannah GA 31405 9,100,000 9,100,000
Center
45 Streetsboro Market 9240-9298 Market Square Streetsboro OH 44241 8,951,000 8,856,454
Square Drive & 9424 State Route
14
46 Ravenswood Apartments 401 West Pine Avenue Lompoc CA 93436 8,800,000 8,790,158
49 Royal Jetstar Tech 4040 Royal Lane Irving TX 75063 8,083,000 8,061,206
Center
52 Sterling University 2985 E. Aurora Avenue Boulder CO 80303 6,960,000 6,960,000
Peaks
54 Hartville Center 839-907 West Maple Hartville OH 44632 6,500,000 6,478,527
55 Pony Express Building 2236 Lower Lake Road & St. Joseph MO 64504 6,485,000 6,451,145
2307 Alabama Street
<CAPTION>
Original Remaining Origination Remaining Interest
Mortgage Term to Term to Amortization Amortization Only
Monthly Interest Maturity Maturity Term Term Period
# Payment(5) Rate (months)(6) (months)(6) (months) (months) (months)
--- ---------- -------- ----------- ----------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
11 191,536.45 8.290% 120 114 360 354 0
12 70,506.33 8.290% 120 116 360 356 0
13 64,053.06 8.220% 120 116 360 356 0
15 109,265.82 8.180% 120 113 360 360 24
16 111,885.05 8.625% 120 112 360 360 24
19 106,558.38 8.390% 123 117 360 354 0
21 99,513.17 8.270% 120 114 300 294 0
22 93,942.78 8.340% 120 113 360 353 0
27 86,495.40 8.170% 120 118 360 358 0
29 85,749.75 8.170% 84 82 360 358 0
31 82,153.99 8.690% 120 116 360 356 0
36 75,561.85 8.420% 120 116 360 356 0
39 74,949.35 8.580% 120 113 360 353 0
44 67,981.80 8.190% 120 118 360 360 12
45 66,634.46 8.030% 120 104 344 328 0
46 64,694.02 8.020% 120 118 360 358 0
49 62,437.93 8.550% 120 114 360 354 0
52 51,946.05 8.180% 120 113 360 360 24
54 51,727.95 8.360% 120 116 300 296 0
55 51,174.33 8.260% 120 114 300 294 0
<CAPTION>
Fee Interest
Simple/ Calculation Servicing
Mortgage (30/360 Trustee
Defeasance Defeasance Loan Actual 360/ And
# ARD (7) (8) Period (9) Leasehold Seller Actual/365) Fees
--- --------- ---------- ---------- --------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
11 4/30/2010 No N/A Leasehold KeyBank Actual/360 0.051700%
12 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(5.58), YM 1%
(1.75), O
(0.33)
13 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(5.58), YM 1%
(1.75), O
(0.33)
15 Yes L (4.08), D Fee KeyBank Actual/360 0.051700%
(5.59), O
(0.33)
16 Yes L (4.08), D Fee KeyBank Actual/360 0.051700%
(5.34), O
(0.58)
19 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(7.5), O (0.25)
21 Yes L (2.5), D Fee KeyBank Actual/360 0.101700%
(7.17), O
(0.33)
22 Yes L (4.08), D Fee KeyBank Actual/360 0.051700%
(5.59), O
(0.33)
27 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.58), O
(0.25)
29 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(4.58), O
(0.25)
31 7/1/2010 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(7.34), O
(0.33)
36 7/1/2010 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(7.34), O
(0.33)
39 4/1/2010 No N/A Fee KeyBank Actual/360 0.051700%
44 9/1/2010 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.58), O
(0.25)
45 Yes L (3.33), D Fee KeyBank Actual/360 0.051700%
(6.42), O
(0.25)
46 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.5), O (0.33)
49 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(7.17), O
(0.33)
52 Yes L (4.08), D Fee KeyBank Actual/360 0.051700%
(5.59), O
(0.33)
54 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(7.34), O
(0.33)
55 Yes L (2.5), D Fee KeyBank Actual/360 0.101700%
(7.17),O
(0.33)
A-1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Cut-off Date
Principal Principal
# Property Name Address City State Zip Code Balance Balance (4)
--- ------------- ------- ---- ----- -------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
56 Willow Pond Apartments 6003 Abrams Road Dallas TX 75231 6,450,000 6,447,095
60 Larry's Market 12323 120th Place NE Kirkland WA 98034 5,700,000 5,692,227
64 Royal Freeport Tech 4343 Royal Lane Irving TX 75038 5,600,000 5,584,901
Center
65 100 Demarest Drive 100 Demarest Drive Wayne Township NJ 07470 5,550,000 5,541,644
77 Ramblewood Apartments 155 Briarwood Road Fort Collins CO 80521 4,600,000 4,495,042
82 Sunpark Apartments 2205 North Frazier Conroe TX 77301 4,150,000 4,145,664
83 Carol Oaks Apartments 7412 Ederville Road Fort Worth TX 76112 4,120,000 4,106,698
85 Tonawanda Manor 111 Ensminger Road Tonawanda NY 14150 4,072,000 4,061,927
89 Whispering Oaks Mobile 315 Barricks Road Brooks KY 40229 3,825,000 3,814,844
Home Park
92 Holy Cross 2415 Musgrove Road Silver Spring MD 20904 3,800,000 3,793,962
ProfessionalCenter
94 Banana Republic 5542 Walnut Street Pittsburgh PA 15232 3,706,000 3,697,607
98 Southtowne Center 10331 and 10317 South Sandy UT 84070 3,460,000 3,452,236
State Street
99 Pinetree Village 7500 Broadway Denver CO 80221 3,450,000 3,444,402
Apartments
100 Weston Shoppes 4000 West 106th Street Carmel IN 46032 3,288,000 3,274,601
102 Old County Road 1725 Old County Road San Carlos CA 94070 3,200,000 3,194,576
103 Cambridge Court 1109 Sixth Avenue North Great Falls MT 59401 3,300,000 3,169,044
Retirement Community
110 Star Wholesale 8223 Stemmons Freeway Dallas TX 75247 2,985,000 2,908,942
Florist, Inc.
111 Office Depot 41690 Ford Road Canton MI 48187 2,912,000 2,907,902
112 CVS Plaza - East Main Street & Burnside East Hartford CT 06108 2,859,900 2,852,871
Hartford Avenue
113 CVS Plaza - Queensbury 216 Quaker Road Queensbury NY 14203 2,860,000 2,851,609
117 Office Depot at 23420 Allen Road Woodhaven MI 48183 2,700,000 2,695,000
Woodhaven Village Square
122 Eckerd's Drug Store - S. 209 Mount Zoar a/k/a Elmira NY 14904 2,552,000 2,545,673
Main 400-404 South Main Street
125 Eckerd's Drug Store - N. 119 Second Street a/k/a Elmira NY 14901 2,512,000 2,505,773
Main 350 - 368 North Main
Street
126 Gentry Plaza 980-1018 Morse Road Columbus OH 43229 2,470,000 2,466,426
130 Eckerd's Drug Store - 479 Broadway Kingston NY 12401 2,400,000 2,395,898
Kingston
131 Pueblo Point Ace 13811 North Tatum Phoenix AZ 85254 2,312,000 2,308,168
Hardware Boulevard
133 Eckerd's Drug Store - 1483 U.S. Route 9 Halfmoon NY 12065 2,273,000 2,265,448
Half Moon
135 New England Place 707-829 West Maple Clawson MI 48017 2,250,000 2,238,943
Apartments
138 Calder Square, Phase II 1111 West Main Street League City TX 77573 2,145,000 2,142,752
Apartments
140 Wekiva Executive 1706 East Semoran Apopka FL 32703 2,150,000 2,138,636
Center(3) Boulevard
<CAPTION>
Original Remaining Origination Remaining Interest
Mortgage Term to Term to Amortization Amortization Only
Monthly Interest Maturity Maturity Term Term Period
# Payment(5) Rate (months)(6) (months)(6) (months) (months) (months)
--- ---------- -------- ----------- ----------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
56 47,282.86 7.990% 144 143 360 359 0
60 43,747.30 8.480% 120 117 360 357 0
64 43,257.75 8.550% 120 114 360 354 0
65 41,344.67 8.160% 120 117 360 357 0
77 33,249.12 7.250% 120 100 300 280 0
82 31,235.93 8.270% 120 118 360 358 0
83 30,116.29 7.960% 120 114 360 354 0
85 32,679.16 8.460% 120 117 300 297 0
89 29,852.13 8.130% 120 117 300 297 0
92 29,894.62 8.750% 120 116 360 356 0
94 28,838.08 8.630% 120 115 360 355 0
98 26,997.75 8.660% 120 115 360 355 0
99 26,843.28 8.230% 120 118 312 310 0
100 26,408.69 8.980% 144 135 360 351 0
102 25,853.58 8.540% 120 118 300 298 0
103 24,386.71 7.500% 120 86 300 266 0
110 25,697.08 8.390% 144 129 240 225 0
111 22,143.59 8.380% 120 117 360 357 0
112 22,848.79 8.830% 120 115 346 341 0
113 21,546.57 8.280% 120 114 360 354 0
117 20,379.17 8.300% 120 116 360 356 0
122 19,316.04 8.330% 120 115 360 355 0
125 19,013.28 8.330% 120 115 360 355 0
126 18,625.79 8.290% 120 117 360 357 0
130 18,522.00 8.540% 120 116 360 356 0
131 18,851.13 8.650% 120 118 300 298 0
133 17,558.01 8.550% 120 113 360 353 0
135 16,965.36 7.730% 120 115 300 295 0
138 16,129.75 8.260% 120 118 360 358 0
140 17,718.43 8.470% 120 115 276 271 0
<CAPTION>
Fee Interest
Simple/ Calculation Servicing
Mortgage (30/360 Trustee
Defeasance Defeasance Loan Actual 360/ And
# ARD (7) (8) Period (9) Leasehold Seller Actual/365) Fees
--- --------- ---------- ---------- --------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
56 Yes L (2.08), D Fee KeyBank Actual/360 0.051700%
(9.59), O
(0.33)
60 8/1/2010 Yes L (2.25), D Fee KeyBank Actual/360 0.101700%
(7.5), O (0.25)
64 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(7.17), O
(0.33)
65 No N/A Fee KeyBank Actual/360 0.051700%
77 2/28/2009 No N/A Fee KeyBank Actual/360 0.051700%
82 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.58), O
(0.25)
83 No N/A Fee KeyBank Actual/360 0.051700%
85 Yes L (2.25), D Fee KeyBank Actual/360 0.051700%
(7.42), O
(0.33)
89 Yes L (2.25), D Fee KeyBank Actual/360 0.051700%
(7.5), O (0.25)
92 Yes L (2.33), D Fee KeyBank Actual/360 0.071700%
(7.42), O
(0.25)
94 Yes L (2.42), D Fee KeyBank Actual/360 0.051700%
(7.25), O
(0.33)
98 Yes L (2,42(, D Leasehold KeyBank A0.051700%
(7.25), O
(0.33)
99 No N/A Fee KeyBank Actual/360 0.051700%
100 Yes L (2.75), D Fee KeyBank Actual/360 0.051700%
(9), O (0.25)
102 9/1/2010 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.58), O
(0.25)
103 No N/A Fee KeyBank Actual/360 0.051700%
110 Yes L (3.25), D Fee KeyBank 30/360 0.051700%
(8.5), O (0.25)
111 8/1/2010 Yes L (2.25), D Fee KeyBank Actual/360 0.051700%
(7.42), O
(0.33)
112 No N/A Fee KeyBank Actual/360 0.051700%
113 No N/A Fee KeyBank Actual/360 0.051700%
117 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(7.34), O
(0.33)
122 6/1/2010 Yes L(2.42), D Fee KeyBank Actual/360 0.051700%
(7.25), O
(0.33)
125 6/1/2010 Yes L(2.42), D Fee KeyBank Actual/360 0.051700%
(7.25), O
(0.33)
126 8/1/2010 Yes L (2.25), D Fee KeyBank Actual/360 0.051700%
(7.42), O
(0.33)
130 7/1/2010 Yes L (2.33), D Fee KeyBank Actual/360 0.051700%
(7.34), O
(0.33)
131 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.58), O
(0.25)
133 Yes L(2.58), D Fee KeyBank Actual/360 0.051700%
(7.09), O
(0.33)
135 Yes L (2.42), D Fee KeyBank Actual/360 0.051700%
(7.33), O
(0.25)
138 Yes L (2.17), D Fee KeyBank Actual/360 0.051700%
(7.58), O
(0.25)
140 No N/A Fee KeyBank Actual/360 0.051700%
A-2
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Cut-off Date
Principal Principal
# Property Name Address City State Zip Code Balance Balance (4)
--- ------------- ------- ---- ----- -------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
142 Office Max - Northwood 2802 Curtice Road Northwood OH 43619 2,025,000 1,982,013
143 Office Max - Alexandria 4525 Highway 29 South Alexandria MN 56308 1,997,000 1,971,098
145 Continental Terrace 3315 East Longview Bloomington IN 47401 1,950,000 1,943,149
Apartments Avenue
146 Cheyenne Mountain 1650 and 1660 East Colorado Springs CO 80906 1,946,000 1,922,979
Center Cheyenne Mountain
Boulevard
147 Circle K Plaza 4355 East University Mesa AZ 85205 1,921,000 1,917,257
Drive
149 Big K Store 431 N.E. 19th Avenue Ruskin FL 33570 1,916,000 1,903,501
150 St. Agnes Apartments 1350 North Meridian Indianapolis IN 46202 1,885,000 1,878,870
Street
152 Peconic Mini Storage 345 Flanders Road Flanders NY 11901 1,837,500 1,833,004
155 North By Northeast II 8200 Block East 96th Fishers IN 46038 1,810,000 1,805,197
Shoppes Street
161 Coliseum Self Storage 1121 North Coliseum Fort Wayne IN 46805 1,780,000 1,768,566
Boulevard
162 Centre Square 2135 Payne Street Las Cruces NM 88001 1,720,000 1,716,093
Apartments
164 The Sun Prairie 911 Sun Prairie Drive Houston TX 77090 1,700,000 1,695,028
Apartments
165 7th Street Grocery 7645 South 700 East Sandy UT 84047 1,660,000 1,652,195
167 New Augusta Shoppes 7111 Georgetown Road Indianapolis IN 46268 1,590,000 1,585,956
170 Sunshine Care Homes 12725-12750 Monte Vista Poway CA 92064 1,579,000 1,553,012
Road
171 1-9 Flatbush Avenue 1-9 Flatbush Avenue Brooklyn NY 11217 1,500,000 1,495,078
172 Pathmark Store No. 550 176-182 West Chelten Philadelphia PA 19144 1,486,000 1,479,970
Avenue
176 Old Orchard II 4330 Keller Road Holt MI 48842 1,430,000 1,425,202
Apartments
179 Castle Store & Lock 1861 Dixie Highway Hamilton OH 45011 1,400,000 1,392,907
181 Arctic Office Building 3940 Arctic Boulevard Anchorage AK 99503 1,400,000 1,386,265
184 Lansing Square 11152 East 16th Street Aurora CO 80010 1,360,000 1,357,566
Apartments
185 CVS #0742-01 90 Garth Road Scarsdale NY 10583 1,340,000 1,337,725
193 Cumberland Technical 4311 West Waters Avenue Tampa FL 33614 1,150,000 1,141,935
Center
202 Town & Country Shopping 106 East Parker Street Baxley GA 31513 1,000,000 996,963
Center
203 The Majestic Building 7 East Bijou Street Colorado Springs CO 80903 989,000 984,234
208 Goodwill Retail Center 17450 Meinig Avenue Sandy OR 97055 872,000 869,437
209 1137 North 13th Street 1137 North 13th Street Milwaukee WI 53208 370,000 369,132
Apartments(2F)
210 949-969 North 27th 949-969 North 27th Milwaukee WI 53208 330,000 329,226
Street(2F) Street
211 Summit Plaza 894-896 Summit Street Round Rock TX 78664 665,000 657,670
212 Sunnyvale Trailer Park 1360 New Louden Road Latham NY 12110 574,000 572,289
213 Woodhaven Village 23200 Allen Road Woodhaven MI 48183 556,000 554,393
Square
214 4425 South 87th Street 4425 South 87th Street Omaha NE 68127 405,000 403,665
<CAPTION>
Original Remaining Origination Remaining Interest
Mortgage Term to Term to Amortization Amortization Only
Monthly Interest Maturity Maturity Term Term Period
# Payment(5) Rate (months)(6) (months)(6) (months) (months) (months)
--- ---------- -------- ----------- ----------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
142 17,000.98 8.050% 120 107 240 227 0
143 17,903.36 8.950% 120 111 240 231 0
145 14,800.77 8.360% 120 113 360 353 0
146 15,447.41 8.330% 120 107 300 287 0
147 15,595.22 9.100% 120 115 360 355 0
149 16,766.67 9.520% 120 111 300 291 0
150 15,089.71 8.430% 120 116 300 296 0
152 14,808.43 8.510% 120 117 300 297 0
155 14,045.81 8.600% 144 138 360 354 0
161 15,481.07 8.530% 120 116 240 236 0
162 13,371.87 8.620% 120 115 360 355 0
164 12,819.37 8.290% 120 114 360 354 0
165 13,059.23 8.750% 120 110 360 350 0
167 12,485.83 8.730% 144 138 360 354 0
170 12,672.00 8.460% 120 104 300 284 0
171 11,967.42 8.390% 120 116 300 296 0
172 12,126.32 8.660% 120 115 300 295 0
176 11,313.09 8.290% 120 116 300 296 0
179 11,178.99 8.400% 120 114 300 294 0
181 11,653.06 8.900% 120 108 300 288 0
184 10,741.10 8.270% 120 118 300 298 0
185 10,360.47 8.560% 84 80 360 356 0
193 9,784.85 9.170% 120 111 300 291 0
202 8,207.85 8.730% 120 116 300 296 0
203 8,050.52 8.630% 120 114 300 294 0
208 7,240.32 8.870% 120 116 300 296 0
209 3,029.37 8.700% 120 117 300 297 0
210 2,701.87 8.700% 120 117 300 297 0
211 5,435.70 8.680% 120 107 300 287 0
212 4,742.53 8.810% 120 116 300 296 0
213 4,643.11 8.940% 120 116 300 296 0
214 3,563.84 9.590% 120 115 300 295 0
<CAPTION>
Fee Interest
Simple/ Calculation Servicing
Mortgage (30/360 Trustee
Defeasance Defeasance Loan Actual 360/ And
# ARD (7) (8) Period (9) Leasehold Seller Actual/365) Fees
--- --------- ---------- ---------- --------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
142 10/1/2009 No N/A Fee KeyBank Actual/360 0.101700%
143 2/1/2010 No N/A Fee KeyBank Actual/360 0.101700%
145 No N/A Fee KeyBank Actual/360 0.051700%
146 Yes L (3.08), D Fee KeyBank Actual/360 0.051700%
(6.59), O
(0.33)
147 Yes L (2.42), D Fee KeyBank Actual/360 0.101700%
(7.33), O
(0.25)
149 2/1/2010 No N/A Fee KeyBank Actual/360 0.051700%
150 No N/A Fee KeyBank Actual/360 0.051700%
152 Yes L (2.25), D Fee KeyBank Actual/360 0.051700%
(7.42), O
(0.33)
155 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(9.17), O
(0.33)
161 No N/A Fee KeyBank 30/360 0.051700%
162 No N/A Fee KeyBank Actual/360 0.051700%
164 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(7.17), O
(0.33)
165 Yes L (2.83), D Fee KeyBank Actual/360 0.051700%
(6.84), O
(0.33)
167 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(9.17), O
(0.33)
170 Yes L (3.33), D Fee KeyBank 30/360 0.051700%
(6.42), O
(0.25)
171 No N/A Fee KeyBank Actual/360 0.051700%
172 6/1/2010 Yes L (2.42), D Fee KeyBank Actual/360 0.051700%
(7.33), O
(0.25)
176 No N/A Fee KeyBank Actual/360 0.051700%
179 Yes L (2.5), D Fee KeyBank Actual/360 0.051700%
(7.17), O
(0.33)
181 No N/A Fee KeyBank Actual/360 0.051700%
184 No N/A Fee KeyBank Actual/360 0.051700%
185 No N/A Fee KeyBank Actual/360 0.051700%
193 Yes L (2.75), D Fee KeyBank Actual/360 0.051700%
(6.92), O
(0.33)
202 No N/A Fee KeyBank Actual/360 0.051700%
203 No N/A Fee KeyBank Actual/360 0.051700%
208 No N/A Fee KeyBank Actual/360 0.051700%
209 No N/A Fee KeyBank Actual/360 0.051700%
210 No N/A Fee KeyBank Actual/360 0.051700%
211 No N/A Fee KeyBank Actual/360 0.051700%
212 No N/A Fee KeyBank Actual/360 0.051700%
213 No N/A Fee KeyBank Actual/360 0.051700%
214 No N/A Fee KeyBank Actual/360 0.051700%
A-3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Cut-off Date
Principal Principal
# Property Name Address City State Zip Code Balance Balance (4)
--- ------------- ------- ---- ----- -------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
215 Cosmos Apartments 1510 Avenue L Plano TX 75074 332,000 330,365
216 North Gate Apartments 1323 North Fourth Street Toronto OH 43964 295,000 293,528
<CAPTION>
Original Remaining Origination Remaining Interest
Mortgage Term to Term to Amortization Amortization Only
Monthly Interest Maturity Maturity Term Term Period
# Payment(5) Rate (months)(6) (months)(6) (months) (months) (months)
--- ---------- -------- ----------- ----------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
215 2,680.07 8.530% 120 114 300 294 0
216 2,369.46 8.470% 120 114 300 294 0
<CAPTION>
Fee Interest
Simple/ Calculation Servicing
Mortgage (30/360 Trustee
Defeasance Defeasance Loan Actual 360/ And
# ARD (7) (8) Period (9) Leasehold Seller Actual/365) Fees
--- --------- ---------- ---------- --------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
215 No N/A Fee KeyBank Actual/360 0.051700%
216 No N/A Fee KeyBank Actual/360 0.051700%
------------------
(2A) The Underlying Mortgage Loans secured by Poly Foam and Poly-Foam International, Inc. are cross-collateralized and
cross-defaulted, respectively.
(2F) The Underlying Mortgage Loans secured by 1137 North 13th Street Apartments and 949-969 North 27th Street are cross-defaulted.
(3) The Underlying Mortgage Loan secured by Wekiva Executive Center follows the following amortization schedule:
Payments 1-59 are based on a 276-month amortization of principal
Payments 60-120 are based on a 350-month amortization of principal
(4) Assumes a Cut-off Date of November 1, 2000.
(5) In the case of Loans with Interest Only Periods, the monthly payment presented herein reflects the amount due during the
respective amortization terms.
(6) In the case of the ARD Loans, the anticipated repayment date is assumed to be the maturity date for the purposes of the
indicated column.
(7) Anticipated Repayment Date.
(8) "Yes" means that defeasance is permitted notwithstanding the Lockout Period.
(9) Prepayment Provision as of Origination:
L (x) = Lockout for x
years
D (x) = Defeasance for x
years
YMA% (x) = Greater of Yield Maintenance Premium and A%
Prepayment for x Years
O(x) = Prepayable at par for x years
</TABLE>
A-4
<PAGE>
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America.
The deposits of the Seller are insured by the Federal Deposit Insurance
Corporation.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and perform under
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
<PAGE>
be likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of the
assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(n) The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
(o) The transfer of the Mortgage Loans hereunder and the grant of any
security interest in accordance with Section 11 hereof are contemporaneous
exchanges in which the Seller will receive new value and consideration
constituting reasonably equivalent value and fair and adequate consideration for
the assets transferred.
(p) The execution, delivery and performance of this Agreement by the Seller
constitute bona fide and arm's length transactions and are undertaken in the
ordinary course of business of the Seller.
(q) Neither DLJCMC nor the Trustee (i) is, or has ever been, an insider or
affiliate of the Seller, (ii) controls, or has ever controlled, the Seller,
(iii) is, or has ever been, controlled by the Seller, or (iv) is, or has ever
been, under common control with the Seller.
(r) This Agreement and all documents relating hereto (i) were approved by
the Board of Directors of the Seller or the Seller's loan committee and, in each
case, such approval is reflected in the minutes of the Board of Directors or the
loan committee and (ii) have been and will be an official record of the Seller
continuously from the respective times of their execution.
(s) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Seller are pending or contemplated.
B-1-2
<PAGE>
(t) The principal place of business and chief executive office of the
Seller is located in Cleveland, Ohio.
B-1-3
<PAGE>
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing Date:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(u) The execution and delivery by the Purchaser of this Agreement, and the
performance and compliance by the Purchaser with the terms of this Agreement
will not: (i) violate the Purchaser's organizational documents; or (ii)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Purchaser is a party or by which it
is bound or which is applicable to it or any of its assets, which default or
breach, in the Purchaser's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Purchaser to perform
its obligations under this Agreement or the financial condition of the
Purchaser.
(v) The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement. The execution, delivery and performance of this Agreement by the
Purchaser constitute bona fide and arm's length transactions and are undertaken
in the ordinary course of business of the Purchaser.
(w) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(x) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(y) There are no actions, suits or proceedings pending or, to the best of
the Purchaser's knowledge, threatened against the Purchaser which, if determined
adversely to the Purchaser, would prohibit the Purchaser from entering into this
Agreement or, in the Purchaser's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Purchaser to
perform its obligations hereunder or the financial condition of the Purchaser.
(z) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been
B-2-1
<PAGE>
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
(aa) The Purchaser (i) is not, and has never been, an insider or affiliate
of the Seller, (ii) does not control, and has never controlled, the Seller,
(iii) is not, and has never been, controlled by the Seller, and (iv) is not, and
has never been, under common control with the Seller.
B-2-2
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE OTHERWISE
EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE SELLER REGARDING
THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT AS
EXPRESSLY SET FORTH HEREIN).
The Seller hereby represents and warrants that, as of the date herein below
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (in accordance
with the requirements of this Agreement and the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as of
the respective Due Dates for the Mortgage Loans in November 2000.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage Loan to or at the direction of the Purchaser
free and clear of any and all pledges, liens, charges, security interests,
participation interests and/or other interests and encumbrances. Subject to the
completion of all missing information (including, without limitation, the names
of assignees and endorsees and missing recording information) in all instruments
of transfer or assignment and endorsements, and the completion of all recording
and filing contemplated hereby and by the Pooling and Servicing Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Due Date for such Mortgage
Loan in November 2000 without giving effect to any applicable grace period, nor
was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in November 2000.
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, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and/or are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or a "marked-up" commitment), none of which materially
interferes with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related
C-1
<PAGE>
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan, (d) other
matters to which like properties are commonly subject, none of which materially
interferes with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property which the
Seller did not require to be subordinated to the lien of such Mortgage and which
do not materially interfere with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service the related Mortgage Loan, and (f) if such Mortgage Loan constitutes
a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group (the foregoing
items (a) through (f) being herein referred to as the "Permitted Encumbrances").
The related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name of the assignee and
any related recording information which is not yet available to the Seller) and
constitutes a legal, valid, binding and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of such Mortgage from the relevant
assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in,
subject to applicable law, the property, rights and interests of the related
Borrower described therein; and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not included
in a Mortgage, executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name of the assignee and any related recording
information which is not yet available to the Seller), and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. If an Assignment of Leases exists with respect to any Mortgage
Loan (whether as part of the related Mortgage or separately), then the related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession to collect the rents.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) the related Mortgaged Property has not
been released from the lien of such Mortgage and (c) the related Borrower has
not been released from its obligations under such Mortgage, in whole or in
material part, in each such event in a manner which would materially interfere
with the benefits of the security intended to be provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth in an engineering report prepared in connection with the
origination of such Mortgage Loan, the related Mortgaged Property is, to the
Seller's knowledge (after inquiry of its servicer, which servicer may be an
affiliate of the Seller), free and clear of any damage that would materially and
adversely
C-2
<PAGE>
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists sufficient to effect the
necessary repairs and maintenance). The Seller has not received notice and has
no knowledge of any proceeding pending for the condemnation of all or any
material portion of the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge (based solely on surveys (if any) and/or the lender's title
policy (or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each Mortgage Loan),
as of the date of the origination of each Mortgage Loan, (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current use of such
Mortgaged Property, and (b) no improvements on adjoining properties 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 lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), 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. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless, in the case of clause (b) below, the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available), (a) access to a public road, and (b) that if a survey was
reviewed or prepared in connection with the origination of the related Mortgage
Loan, the area shown on such survey is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
exceptions set forth in Paragraph 13 below, enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby, including, without limitation,
foreclosure or similar proceedings (as applicable for the jurisdiction where the
related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly
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designated and currently so serves or may be substituted in accordance with the
Mortgage and applicable law, and (b) no fees or expenses are payable to such
trustee by the Seller, the Depositor or any transferee thereof except in
connection with a trustee's sale after default by the related Borrower or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12 (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials, lead-based paint
and radon) (a) an environmental site assessment, an environmental site
assessment update or a transaction screen was performed by an independent
third-party environmental consultant with respect to each Mortgaged Property
securing a Mortgage Loan in connection with the origination of such Mortgage
Loan, (b) a report of each such assessment, update or screen, if any (an
"Environmental Report"), has been delivered to the Purchaser, and (c) either:
(i) no such Environmental Report, if any, provides that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related to the
related Borrower was identified as a responsible party for such condition or
circumstance, (B) the related Borrower was required to provide additional
security and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Seller, in its sole discretion, that applicable federal, state
or local governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or circumstance,
(D) such conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (G) the related Borrower or other responsible party
is currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, (H) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions or (I) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had, in the Seller's sole discretion, an
appropriate net worth in light of the environmental matters covered by such
guaranty or indemnity. To the Seller's knowledge, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage for each Mortgage
Loan encumbering the Mortgaged Property requires the related Borrower to comply
with all applicable federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency
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<PAGE>
legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by (i) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (i) and (ii)) such limitations or unenforceability will
not render such loan documents invalid as a whole or substantially interfere
with the mortgagee's realization of the principal benefits and/or security
provided thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Borrower with respect to such Mortgage Note,
Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the replacement
cost of the improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. With respect to each Mortgage Loan, the related
Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
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below). In the case of each Mortgage Loan, the related Mortgaged Property is
covered by comprehensive general liability insurance in an amount at least equal
to $1 million.
15. Taxes and Assessments. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there are no
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan that are a lien of priority
equal to or higher than the lien of the related Mortgage and that are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Seller's knowledge, no Borrower under a
Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or based on such other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located (including, without limitation,
when commercially reasonable, a representation of the related Borrower at the
time of origination of the subject Mortgage Loan), the improvements located on
or forming part of each Mortgaged Property securing a Mortgage Loan are in
material compliance with applicable zoning laws and ordinances or constitute a
legal non-conforming use or structure (or, if any such improvement does not so
comply and does not constitute a legal non-conforming use or structure, such
non-compliance and failure does not materially and adversely affect the value of
the related Mortgaged Property as determined by the appraisal performed in
connection with the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from or other agreements with
the ground lessor, a "Ground Lease"), but not by the related fee interest in
such Mortgaged Property or such material portion thereof (the "Fee Interest"),
then:
(b) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the exception of material
changes reflected in written instruments which are a part of the related
Mortgage File;
(bb) The related lessee's leasehold interest in the portion of the related
Mortgaged Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related Mortgage, other
than the related Fee Interest and Permitted Encumbrances;
(cc) The Borrower's interest in such Ground Lease is assignable to, and is
thereafter further assignable by, the Purchaser upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it either
has been obtained or cannot be unreasonably withheld); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been paid;
(dd) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease;
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(ee) Such Ground Lease requires the lessor thereunder to give written
notice of any default by the lessee to the mortgagee under such Mortgage Loan.
In addition, if required by such Ground Lease, the lessor thereunder has
received notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease. Furthermore, such Ground Lease further provides
that no notice of termination given under such Ground Lease is effective against
the mortgagee under such Mortgage Loan unless a copy has been delivered to such
mortgagee in the manner described in such Ground Lease;
(ff) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(gg) Except in the case of the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as Page Field Commons, such
Ground Lease either (i) has an original term which extends not less than ten
(10) years beyond the Stated Maturity Date of such Mortgage Loan, or (ii) has an
original term which does not end prior to the 5th anniversary of the Stated
Maturity Date of such Mortgage Loan and has extension options that are
exercisable by the lender upon its taking possession of the Borrower's leasehold
interest and that, if exercised, would cause the term of such Ground Lease to
extend not less than ten (10) years beyond the Stated Maturity Date of such
Mortgage Loan;
(hh) Such Ground Lease requires the lessor to enter into a new lease with a
mortgagee upon termination of such Ground Lease as a result of a rejection of
such Ground Lease in a bankruptcy proceeding involving the related Borrower
unless the mortgagee under such Mortgage Loan fails to cure a default of the
lessee under such Ground Lease following notice thereof from the lessor;
(ii) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to the leasehold
interest will be applied either (i) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee appointed by
it having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the payment of
the outstanding principal balance of the Mortgage Loan together with any accrued
interest thereon;
(jj) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by a prudent commercial mortgage
lender in the lending area where the Mortgaged Property is located at the time
of the origination of such Mortgage Loan; and
(kk) Such Ground Lease may not be amended or modified without the prior
written consent of the mortgagee under such Mortgage Loan, and any such action
without such consent is not binding on such mortgagee, its successors or
assigns.
(19) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and
Treasury regulation section 1.860G-2(a) (but without regard to the
rule in Treasury regulation section 1.860G-2(f)(2)).
1. Advancement of Funds. In the case of each Mortgage Loan, neither the
Seller nor, to
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the Seller's knowledge, any prior holder of such 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 (other than amounts
paid by the tenant as specifically provided under related lease), for the
payment of any amount required by such Mortgage Loan, except for interest
accruing from the date of origination of such Mortgage Loan or the date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
2. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
3. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the Borrower under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan or the current ability of the
Borrower to pay principal, interest or any other amounts due under such Mortgage
Loan.
4. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To the Seller's knowledge, except as otherwise set forth on Schedule C-23, and
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage.
5. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal 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 that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
6. Compliance. Each Mortgage Loan complied with, or was exempt from, all
applicable usury laws in effect at its date of origination.
7. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where
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the related Mortgaged Property is located, customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
8. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
9. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan; provided that the Mortgage Loans that
are Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price and prepayment
consideration in connection therewith; and provided, further, that any Mortgage
Loan may permit the unconditional release of one or more unimproved parcels of
land to which the Seller did not give any material value in underwriting the
Mortgage Loan.
10. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
11. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee.
12. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
13. Inspection. In connection with the origination of each Mortgage Loan
(other than the Mortgage Loans originated under the Seller's small balance loan
program.), the Seller inspected, or caused the inspection of, the related
Mortgaged Property.
14. No Material Default. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
15. Due-on-Sale. Subject to exceptions set forth in the related Mortgage,
the Mortgage for each Mortgage Loan contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the prior written consent of
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the holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
16. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $15,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
17. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
18. Tax Parcels. Except as described on Schedule C-37 of this Agreement,
each Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related Title Policy or in certain instances
an application has been made to the applicable governing authority for creation
of separate tax lots which shall be effective for the next tax year.
19. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate") as set forth on Schedule C-38.
20. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then (a) the
security agreements, financing statements or other instruments, if any, related
to the Mortgage Loan secured by such Mortgaged Property establish and create a
valid security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related information which is not yet available to the Seller)
executed and delivered in favor of the Trustee constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
21. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
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22. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its stated maturity date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
23. Servicing Rights. Except as set forth on Schedule C-42 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
24. Recourse. The related Mortgage Loan Documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation or misappropriation of any tenant security deposits, rent,
insurance proceeds or condemnation proceeds. The related Mortgage Loan Documents
contain provisions pursuant to which the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower has agreed to
indemnify the mortgagee for damages resulting from violations of any applicable
environmental laws.
25. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
26. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
27. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Mortgage Loan
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any material improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the Closing Date, have been complied with
in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
28. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and/or financial statements of the related Borrower,
and with such other information as may be required therein.
29. Grace Period. Except as set forth on Schedule C-48, with respect to
each Mortgage Loan, the related Mortgage or Mortgage Note provides a grace
period for delinquent Monthly Payments no longer than 15 days from the
applicable Due Date.
30. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined
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in such policy) identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession or are otherwise
known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
31. The Banana Republic Loan. With respect to the Mortgage Loan secured by
a Mortgage on the Mortgaged Property identified on the Mortgage Loan Schedule as
Banana Republic, a sufficient escrow of funds exists with the lender in order to
remediate the current groundwater contamination at such Mortgaged Property to
the extent necessary for such Mortgaged Property to comply with all applicable
state and federal environmental laws and regulations relevant to such matter or
otherwise to the extent that neither the related Borrower nor the lender would
be required to take any further action under such laws and regulations with
respect to such matter.
32. Healthcare Facilities. To the Seller's knowledge, with respect to any
Mortgaged Property securing a Mortgage Loan that is operated as a healthcare
facility, as of origination of such Mortgage Loan, the operator with respect to
such facility held all material certificates, licenses and permits required by
applicable law for the operation of such facility and was in material compliance
with all applicable state and federal laws and regulations. In addition, except
as set forth on Schedule C-51 hereto, the loan documents for such Mortgage Loan
provide that all material certificates, licenses and permits reasonably
necessary for the operation of such facility will continue to be maintained.
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SCHEDULE C-12
MORTGAGED PROPERTIES AS TO WHICH NO ENVIRONMENTAL TESTING
WAS CONDUCTED IN CONNECTION WITH THE ORIGINATION
OF THE RELATED MORTGAGE LOANS OTHER THAN WITH RESPECT TO
ASBESTOS-CONTAINING MATERIALS, LEAD-BASED PAINT AND RADON
---------------------------------------------------------
None
SCHEDULE C-12-1
<PAGE>
SCHEDULE C-23
OTHER MORTGAGE LIEN EXCEPTIONS
------------------------------
1735 Central Avenue Office Building-- The related Mortgage does not provide for
acceleration of the payment of the unpaid balance of the Mortgage Loan if the
related Borrower further encumbers the related Mortgaged Property.
C-23-1
<PAGE>
SCHEDULE C-28
RELEASES OF MORTGAGED PROPERTIES
None
C-28-1
<PAGE>
SCHEDULE C-32
INSPECTION EXCEPTIONS
---------------------
1137 North 13th Street Apartments
1-9 Flatbush Avenue
4425 south 87th Street
949-969 North 27th Street
Arctic Office Building
Centre Square Apartments
Continental Terrace Apartments
Cosmos Apartments
CVS #0742-01
Goodwill Retail Center
North Gate Apartments
Summit Plaza
Sunnyvale Trailer Park
The Majestic Building
Town & Country Shopping Center
Woodhaven Village Square
C-32-1
<PAGE>
SCHEDULE C-37
TAX PARCEL EXCEPTIONS
---------------------
Southtowne Centre
Office Depot at Woodhaven
C-37-1
<PAGE>
SCHEDULE C-38
ARD LOANS
---------
With respect to each of the following loans, after its Anticipated
Repayment Date, interest will accrue at the rate specified below:
10136 Pathmark - interest rate adjusts to the greater of initial interest
rate plus 2% or treasury rate plus 2%
10321 Ramble Apts. - interest rate adjusts to LIBOR, plus 5%.
10340 Larry's Market - interest rate adjusts to the greater of initial
interest rate plus 2% or treasury rate plus 2%
10383 Page Field Commons -- interest rate adjusts to the lesser of (i) the
maximum rate permitted by applicable law, and (ii) the greater of (a)
initial interest rate plus 2% and (b) the extended treasury rate plus 2%
10384 Roseland Shopping Center - interest rate adjusts to the greater of
initial interest rate plus 2% or adjusted LIBOR
10388 Ruskin K-Mart - interest rate adjusts to the greater of initial
interest rate plus 2% or adjusted LIBOR
10716 Old County - interest rate adjusts to the greater of interest rate
plus 2% or the treasury rate plus 2%.
10876 Twelve Oaks Shopping Center - interest rate adjusts to the greater of
initial interest rate plus 2% or treasury rate plus 2%.
11245 Eckerd's North Main Street -- interest rate adjusts to the greater of
initial interest rate plus 2% or extended treasury rate plus 2%.
11246 Eckerd's South Main Street -- interest rate adjusts to the greater of
initial interest rate plus 2% or extended treasury rate plus 2%.
11409 2200 First Avenue South - interest rate adjusts to the greater of
initial interest rate plus 2% or extended treasury rate plus 2%
11495 Eckerd's - Kingston -- interest rate adjusts to the greater of
initial interest rate plus 2% or extended treasury rate plus 2%.
11500 Westgate Crossing -- interest rate adjusts to the greater of initial
interest rated plus 2% or extended treasury rate plus 2%.
11582 Gentry Plaza -- interest rate adjusts to the greater of initial
interest rate plus 2% or extended treasury rate plus 2%.
11592 Office Depot Canton -- interest rate adjusts to the greater of
initial interest rate plus 2% or extended treasury rate plus 2%
C-38-1
<PAGE>
SCHEDULE C-41
GRACE PERIOD
------------
With respect to each of the following loans, the related promissory note
provides that the failure to timely pay a Monthly Payment does not constitute an
event of default under such promissory note until 5 days after the date of
written notice to the related Borrower of such failure:
Streetsboro
Sunshine Care Home
Star Wholesale Warehouse
Andover Park Apartments
C-41-1
<PAGE>
SCHEDULE C-42
MORTGAGE LOANS SUBJECT
TO THE SERVICING
RIGHTS OF THIRD-PARTIES
-----------------------
Office Max-Northwood
Office Max-Alexandria
Larry's Market
Holy Cross Professonal Center
Railway Express Building
Circle K Plaza
Pony Express Building
C-42-1
<PAGE>
SCHEDULE C-51
HEALTHCARE FACILITIES
---------------------
Although the related mortgage loan documents for both Loan No. 3634
(Cambridge) and Loan No. 11581 (Tonawanda) include (i) a representation that the
related Borrower has obtained all certificates and licenses necessary for the
operation of the related Mortgaged Property and (ii) a covenant that the related
Borrower comply with all applicable laws affecting the related Mortgaged
Property or the use thereof, the related mortgage loan documents do not
specifically provide that all material certificates, licenses and permits
reasonably necessary for the operation of such facility shall continue to be
maintained.
C-51-1
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN [ASSISTANT] SECRETARY OF THE SELLER
CERTIFICATE OF [ASSISTANT] SECRETARY OF ____________________
I, __________________, hereby certify that I am a duly appointed
[Assistant] Secretary of KeyBank National Association, a national banking
association ("KeyBank"), and further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete copies of
the [specify organizational documents] of KeyBank, which are in full force and
effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of KeyBank authorizing and approving KeyBank's execution, delivery and
performance of (a) the Mortgage Loan Purchase Agreement, dated as of October 27,
2000 (the "Mortgage Loan Purchase Agreement"), between DLJ Commercial Mortgage
Corp., as purchaser and KeyBank, as seller, and (b) the corresponding
Indemnification Agreement referred to in the Mortgage Loan Purchase Agreement
(the "Indemnification Agreement"). Such resolutions are in full force and effect
on the date hereof and do not conflict with any other resolutions of the board
of directors of KeyBank in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing with
respect to KeyBank issued by the Comptroller of the Currency within 30 days of
the date hereof and no event (including, without limitation, any act or omission
on the part of KeyBank) has occurred since the date thereof that has affected
the good standing of KeyBank under the laws of the United States of America.
4. Each person who, as an officer or representative of KeyBank, signed the
Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of KeyBank prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November __, 2000.
By:
-----------------------------------
Name:
Title: [Assistant] Secretary
D-1-1
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-CKP1
CERTIFICATE OF KEYBANK NATIONAL ASSOCIATION
In connection with the execution and delivery by KeyBank National
Association ("KeyBank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
October 27, 2000 (the "Mortgage Loan Purchase Agreement") between DLJ Commercial
Mortgage Corp. ("DLJCMC"), as purchaser, and KeyBank, as seller, and that
certain Indemnification Agreement dated as of October 27, 2000 (the
"Indemnification Agreement"), among KeyBank, DLJCMC, Donaldson, Lufkin &
Jenrette Securities Corporation, Prudential Securities Incorporated, Credit
Suisse First Boston Corporation, McDonald Investments Inc. and Salomon Smith
Barney Inc. (together, the Mortgage Loan Purchase Agreement and the
Indemnification Agreement are referred to as the "Agreements"), the undersigned
hereby certifies that (i) the representations and warranties of KeyBank in the
Agreements are true and correct in all material respects at and as of the date
hereof (or, in the case of any particular representation and warranty set forth
in Exhibit C to the Mortgage Loan Purchase Agreement, as of such other date
specifically set forth in such representation and warranty) with the same effect
as if made on the date hereof (or, in the case of any particular representation
and warranty set forth in Exhibit C to the Mortgage Loan Purchase Agreement, on
such other date specifically set forth in such representation and warranty), and
(ii) KeyBank has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part required under the Agreements to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this ___ day of November, 2000.
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
D-2-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION OF ROBERT C. BOWES,
PURSUANT TO SECTION 7(VI)
November 7, 2000
Moody's Investors Service, Inc. Fitch, Inc.
99 Church Street One State Street Plaza, 31st Flr.
New York, NY 10007 New York, NY 10004
Prudential Securities Incorporated Wells Fargo Bank Minnesota, N.A.
1 New York Plaza, 18th Floor 45 Broadway, 12th Floor
New York, NY 10292-2018 New York, NY 10006
DLJ Commercial Mortgage Corp. Donaldson, Lufkin & Jenrette
11 Madison Avenue Securities Corporation
New York, NY 10010 11 Madison Avenue
New York, NY 10010
McDonald Investments Inc. Salomon Smith Barney, Inc.
800 Superior Avenue, 17th Flr. 388 Greenwich Street, 11th Flr.
Cleveland, OH 44114 New York, NY 10013
Credit Suisse First Boston Corporation Midland Loan Services, Inc.
11 Madison Avenue 210 W. 10th Street
New York, NY 10010 Kansas City, Missouri 64105
Re: DLJ Commercial Mortgage Trust 2000-CKP1
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank National
Association, a national banking association (the "Bank"), I have acted as
counsel to the Bank and to its affiliate Key Corporate Capital Inc. (the
"Corporation"), in connection with the negotiation, execution and delivery by
the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined and
relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following:
1. The Mortgage Loan Purchase Agreement between the Bank and DLJ
Commercial Mortgage Corp. ("DLJCMC");
2. The Pooling and Servicing Agreement among the Corporation, as Master
Servicer and Special Subservicer, DLJCMC, Midland Loan Services, Inc.
("Midland"), as Special Servicer, and Wells Fargo Bank Minnesota,
N.A., as Trustee;
D-3A-1
<PAGE>
3. The Indemnification Agreement among the Bank, DLJCMC, Donaldson,
Lufkin & Jenrette Securities Corporation, Prudential Securities
Incorporated, Salomon Smith Barney Inc., McDonald Investments Inc. and
Credit Suisse First Boston Corporation; and
4. The Subservicing Agreement between Midland as Special Servicer and the
Corporation as Special Subservicer.
The agreements listed in items 1 through 4 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction have
assumed the genuineness of all signatures other than those signatures for the
Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and qualifications
set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a national
banking association in good standing under the laws of the United States of
America, with corporate power and authority to own its properties and to conduct
its business as now conducted by it and to enter into and perform its
obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Michigan;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements it is
a party to, nor the consummation by the Bank of the transactions contemplated by
such Agreements, nor the performance by the Bank of its obligations thereunder
will result in a material breach or violation of, or constitute a material
default under (i) the Articles of Association or by-laws, as amended, of the
Bank, (ii) the terms of applicable current provisions of statutory law or
regulation, (iii) any existing obligation of the Bank under any indenture,
agreement, or instrument actually known to me, after reasonable investigation,
which breach, violation or default would reasonably be expected to have a
material adverse effect on the condition of the Bank, financial or otherwise, or
adversely affect the transactions contemplated by, or the Bank's performance of
its obligations under, the Agreements to which the Bank is a party, or (iv) the
terms of any order, writ, judgement or decree actually known to me after
reasonable investigation, issued by a court of competent jurisdiction and
specifically directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the Agreements
it is a party to, nor the consummation by the Corporation of the transactions
contemplated by such
D-3A-2
<PAGE>
Agreements, nor the performance by the Corporation of its obligations thereunder
will result in a material breach or violation of, or constitute a material
default under (i) the Articles of Incorporation or by-laws, as amended, of the
Corporation, (ii) the terms of applicable current provisions of statutory law or
regulation, (iii) any existing obligation of the Corporation under any
indenture, agreement, or instrument actually known to me, after reasonable
investigation, which breach, violation or default would reasonably be expected
to have a material adverse effect on the condition of the Corporation, financial
or otherwise, or adversely affect the transactions contemplated by, or the
Corporation's performance of its obligations under, the Agreements to which the
Corporation is a party, or (iv) the terms of any order, writ, judgement or
decree actually known to me after reasonable investigation, issued by a court of
competent jurisdiction and specifically directed to the Corporation or its
property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the Corporation in
connection with its execution, delivery and performance of the Agreements to
which it is a party, except such consents, approvals or authorizations as have
been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there are no
actions, proceedings or investigations pending or threatened against the Bank or
the Corporation before any court, administrative agency, or tribunal (i)
asserting the invalidity of any of the Agreements, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any of the Agreements,
or (iii) that could reasonably be expected to materially and adversely affect
the enforceability of any of the Agreements against the Bank or the Corporation,
as the case may be, or the ability of the Bank or the Corporation, as the case
may be, to perform its obligations thereunder.
For purposes of this opinion letter, I have assumed that (i) the Agreements
have been duly executed and delivered by all parties thereto (other than the
Bank and/or the Corporation, as the case may be) and are valid and binding upon
and enforceable against such parties (other than the Bank and/or the
Corporation, as the case may be), subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and (ii) there has been no mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence. For purposes of my opinions in paragraphs (b) and
(f)(ii) I have, with your permission, relied solely upon the opinion of Conlin,
McKenney & Philbrick, which opinion is dated the date hereof and attached
hereto.
The opinions expressed above are limited to Federal law and the laws of the
State of Ohio.
D-3A-3
<PAGE>
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
Robert C. Bowes
Senior Vice President and
Associate General Counsel
D-3A-4
<PAGE>
EXHIBIT D-3B
FORM OF OPINION OF CONLIN, MCKENNEY & PHILBRICK, P.C.,
PURSUANT TO SECTION 7(VII)
November 7, 2000
DLJ Commercial Mortgage Corp. Credit Suisse First Boston Corporation
11 Madison Avenue 11 Madison Avenue
New York, New York 10010 New York, New York 10010
Salomon Smith Barney Inc. Wells Fargo Bank Minnesota, N.A.
388 Greenwich Street 45 Broadway, 12th Floor
New York, New York 10013 New York, New York 10006
Prudential Securities Incorporated Moody's Investors Service, Inc.
One New York Plaza, 18th Floor 99 Church Street
New York, New York 10292-2018 New York, New York 10007
Donaldson, Luftkin & Jenrette Fitch, Inc.
Securities Corporation One State Street Plaza, 31st Floor
11 Madison Avenue New York, New York 10004
New York, New York 10010
McDonald Investment Inc.
800 Superior Avenue
Cleveland, Ohio 44114
Re: DLJ Commercial Mortgage Trust 2000-CKP1
---------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Key Corporate Capital Inc. d/b/a Key
Commercial Mortgage (the "Corporation"), in connection with the execution and
delivery by the Corporation of the Pooling and Servicing Agreement among the
Corporation as Master Servicer and Special Sub-Servicer, DLJ Commercial Mortgage
Corp. as Depositor, Midland Loan Services, Inc. as Special Servicer, and Wells
Fargo Bank, Minnesota, N.A. as Trustee (the "Agreement").
In that regard, we have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction as being true copies of
all such records of the Corporation, all such agreements, certificates and other
documents as we have deemed necessary as a basis for the opinion set forth
herein, including the Agreement.
In such examination, we have assumed the genuineness of all signatures
other than those signatures for the Corporation, the legal capacity of all
natural persons, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted to
us as certified or photostatic copies. We have investigated such questions of
law for the purpose of rendering these opinions as we have deemed necessary.
D-3B-1
<PAGE>
Based on the foregoing, and subject to the limitations and qualifications
set forth below, we are of the opinion that:
(1) The Corporation has been duly organized and is validly existing and in
good standing under the laws of the State of Michigan.
(2) Neither the execution and delivery by the Corporation of the Agreement,
nor the consummation by the Corporation of the transactions contemplated by the
Agreement, nor the performance by the Corporation of its obligations thereunder
will result in a material breach or violation of or constitute a material
default under the terms of applicable current provisions of statutory law or
regulation.
(3) No consent, approval, authorization, or order of any State of Michigan
or federal court or State of Michigan governmental agency or body is required
for the consummation by the Corporation of the transactions contemplated by the
Agreement, except those consents, approvals, authorizations or orders that
previously have been obtained.
For purposes of this opinion letter, we have assumed that (i) the Agreement
has been duly executed and delivered by all parties hereto and is valid and
binding upon and enforceable against such parties, subject to applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto, (ii) there has been no mutual mistake of fact or
misunderstanding, fraud, duress, or undue influence; and (iii) that none of the
Mortgage Loans (as defined in the Agreement) includes a loan secured by a
mortgage on or land contract covering real property located in the State of
Michigan and used or improved to be used as a dwelling and designed for
occupancy by four or fewer families.
The opinions expressed above are limited to Federal law and the laws of the
State of Michigan.
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
CONLIN, McKENNEY & PHILBRICK, P.C.
D-3B-2
<PAGE>
EXHIBIT D-3C
FORM OF OPINION OF POLSINELLI SHALTON & WELTE, P.C.,
PURSUANT TO SECTION 7(VIII)
November 7, 2000
DLJ Commercial Mortgage Corp. Wells Fargo Bank Minnesota, N.A.
11 Madison Avenue 45 Broadway, 12th Floor
New York, New York 10010 New York, New York 10006
Donaldson, Lufkin & Jenrette Securities Moody's Investors Service, Inc.
Corporation 99 Church Street
11 Madison Avenue New York, New York 10007
New York, New York 10010
Prudential Securities Incorporated Fitch, Inc.
One New York Plaza, 18th Floor One State Street Plaza, 31st Floor
New York, New York 10292-2018 New York, New York 10004
Salomon Smith Barney Inc. McDonald Investment Inc.
388 Greenwich Street 800 Superior Avenue
New York, New York 10013 Cleveland, Ohio 44114
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Re: DLJ Commercial Mortgage Trust 2000-CKP1
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("KEY"), in connection with the following
transactions (collectively, the "TRANSACTIONS"):
(i) the sale by Key, and the purchase by DLJ Commercial Mortgage Corp.
(the "DEPOSITOR") (such Transaction, the "SALE"), of certain
multifamily and commercial mortgage loans (the "MORTGAGE LOANS"),
pursuant to that certain Mortgage Loan Purchase Agreement, dated as of
October 27, 2000 (the "LOAN PURCHASE AGREEMENT"), between Key as
seller and the Depositor as purchaser;
(ii) the creation of a common law trust (the "TRUST") and the issuance of
Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1 (the
"CERTIFICATES"), pursuant to that certain Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "POOLING AND SERVICING
AGREEMENT"), among the Depositor as
D-3C-1
<PAGE>
depositor, Key Corporate Capital Inc. as master servicer and special
sub-servicer, Midland Loan Services, Inc. as special servicer, and
Wells Fargo Bank Minnesota, N.A. as trustee (the "TRUSTEE"); and
(iii) the transfer of the Mortgage Loans by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "AGREEMENTS". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Pursuant to the Loan Purchase Agreement, the intent of the parties is that
the Sale of the Mortgage Loans by Key to the Depositor be a true sale, leaving
Key with no interest in the Mortgage Loans. Nonetheless, under the terms of the
Loan Purchase Agreement, if the Sale is later determined to be a secured loan
rather than an absolute sale of the Mortgage Loans by Key to the Depositor, then
Key grants a security interest to the Depositor in all right, title and interest
of Key in and to the Mortgage Loans. You have requested our opinion as to
whether, if the Federal Deposit Insurance Corporation (the "FDIC") were to be
appointed as conservator or receiver for Key pursuant to Section 11(c) of the
Federal Deposit Insurance Act, as amended (the "FDIA"),(3) and a court were to
recharacterize the transfer of the Mortgage Loans as a borrowing secured by a
security interest in the Mortgage Loans rather than an absolute sale of the
Mortgage Loans by Key:
(i) the security interest in the Mortgage Loans granted by Key pursuant to
the Loan Purchase Agreement (the "SECURITY Interest") would be
enforceable against Key notwithstanding the appointment of the FDIC as
conservator or receiver for Key;
(ii) the Security Interest would be subject to avoidance by the FDIC as
conservator or receiver for Key; and
(iii) the Security Interest would be a perfected security interest in the
Mortgage Loans.
In connection with this opinion letter, we have reviewed (i) the Loan
Purchase Agreement, (ii) the Pooling and Servicing Agreement and (iii) a
certificate dated the date hereof from an officer of Key that certifies certain
of the matters in the immediately succeeding paragraph. This opinion is based
solely upon our review of the Agreements and our examination of such other
documents, and such other investigations of law and fact, as we have deemed
necessary or advisable in connection with this opinion letter.
In rendering the opinions set forth in this letter, we have relied upon,
and assumed, without independent investigation or inquiry, the following to be
true at all relevant times:
(a) All representations and warranties in the Agreements are true and
correct with respect to the factual matters pertaining to this opinion letter
and all statements in the certificates relating
------------------------------
(3) 12 U.S.C. ss 1821, et seq.
D-3C-2
<PAGE>
to the Agreements or furnished in connection herewith pertaining to this opinion
letter are true and correct.
(b) All signatures are genuine, all natural persons have the legal capacity
to execute and deliver the documents signed by them, all documents submitted to
us as originals are authentic and all documents submitted to us as certified or
photostatic copies conform to the original documents.
(c) The Agreements have been duly authorized, executed and delivered by,
and constitute the legal, valid and binding obligations of, all parties thereto,
subject to the effect of any applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws of general
application affecting creditors' rights. The execution, delivery and performance
of the Agreements by the parties thereto does not violate any applicable law.
All applicable notices to, authorizations from, filings with, and approvals of,
any governmental agency or body required for the consummation of the
Transactions shall have been obtained or made, and are in full force and effect.
Each of Key and the Depositor has taken all actions required under applicable
law to effectuate the Sale of the Mortgage Loans. There are no agreements or
courses of prior dealing between any of the parties that would alter the
relationships set forth in the Agreements
(d) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter comply with
all material provisions of the Agreements, as applicable, including the
provisions in those agreements relating to the delivery and custodial possession
of the Mortgage Files (including the Notes) for the Mortgage Loans.
(e) Key is a national bank, the deposits of which are insured by the FDIC.
(f) Immediately before the sale of the Mortgage Loans pursuant to the Loan
Purchase Agreement, Key owned the Mortgage Loans free and clear of any adverse
claims.
(g) Key's and the Depositor's respective accounting records will identify
the Mortgage Loans as property of the Depositor (except to the extent assigned
to the Trust) consistent with generally accepted accounting principles.
(h) It is the intention of Key and the Depositor that the Sale constitute a
sale by Key to the Depositor of all Key's right, title, and interest in and to
the Mortgage Loans. Each of Key and the Depositor will treat to Sale as a sale
(as opposed to a secured loan) under generally accepted accounting principles.
(j) The transfer of the Mortgage Loans and the grant of the Security
Interest are contemporaneous exchanges in which Key and the Depositor,
respectively, receive new value and consideration constituting reasonably
equivalent value and fair and adequate consideration for the assets transferred.
(k) The execution, delivery and performance of the Agreements and the
Transactions constitute bona fide and arm's length transactions and are
undertaken in the ordinary course of business of the respective parties.
(l) The Trustee, initially on behalf of the Depositor and immediately
thereafter on behalf of the Trust, will take possession of the Mortgage Loans
consisting of the Notes and the cash proceeds therefrom (the "INSTRUMENTS AND
CASH") in the ordinary course of it business and will take
D-3C-3
<PAGE>
such action without knowledge that the Instruments and Cash are subject to any
lien, claim or encumbrance.
(m) The Trustee will maintain continuous possession of the Instruments and
Cash in the State of Minnesota in accordance with the terms and provisions of
the Pooling and Servicing Agreement.
(n) The Security Interest shall have attached to the Mortgage Loans and
shall constitute an enforceable security interest under applicable New York law
(such issues are opined to in a separate opinion of Phillips, Lytle, Hitchcock,
Blaine & Huber LLP of even date with this letter).
(o) Neither the Depositor nor the Trustee (i) is, has ever been or will
ever be an insider or affiliate of Key, (ii) controls, has ever controlled or
will ever control Key, (iii) is controlled, has ever been controlled or will
ever be controlled by Key, or (iv) is, has ever been or will ever be under
common control with Key.
(p) The Agreements and the Transactions shall not be subject to an order of
the type described under Section 8(b)(6)(D) of the FDIA and were not, are not
and shall not be inconsistent with any formal or informal enforcement action by
a bank regulatory agency.
(q) Key did not and will not (i) execute the Loan Purchase Agreement, (ii)
grant the Security Interest, (iii) cause, permit or suffer the perfection or
attachment of the Security Interest, (iv) otherwise effectuate or consummate the
transfer pursuant to the Loan Purchase Agreement or any other agreement, or (v)
acquire its interest in the Loan Purchase Agreement, any other agreement or the
proceeds of the transfer of its Mortgage Loans:
(1) in contemplation of Key's insolvency;
(2) with a view to preferring one creditor of Key over another or to
preventing the application of Key's assets in the manner required by
applicable law or regulations;
(3) after Key committed an act of insolvency; or
(4) with any intent to hinder, delay or defraud Key or its creditors.
(r) The Depositor did not and will not (i) execute the Loan Purchase
Agreement, (ii) acquire from Key any security interest, (iii) cause, permit or
suffer the perfection or attachment of the Security Interest, (iv) otherwise
effectuate or consummate any transfer from Key pursuant to the Loan Purchase
Agreement or any other agreement, or (v) take its interest in the Mortgage Loans
under the Loan Purchase Agreement or under any other agreement:
(1) in contemplation of Key's insolvency;
(2) with a view to preferring one creditor of Key over another or to
preventing the application of Key's assets in the manner required by
applicable law or regulations;
(3) after Key committed an act of insolvency; or
(4) with any intent to hinder, delay or defraud Key or Key's creditors.
D-3C-4
<PAGE>
(s) The Loan Purchase Agreement and all documents relating thereto (i) were
approved by the Board of Directors of Key or Key's loan committee and, in each
case, such approval is reflected in the minutes of the Board of Directors or the
loan committee and (ii) will have been an official record of Key continuously
from the time of its execution.
In rendering the opinions set forth in paragraphs (1) and (2) below, we do
not express any opinion concerning any law other than the federal laws of the
United States of America. In rendering the opinions set forth in paragraph (3)
below, we do not express any opinion concerning any law other than the laws of
the States of New York and Minnesota, to the extent and subject to the
qualifications set forth below. We do not express any opinion on any matter not
expressly addressed below.
Based on the foregoing and the reasoning set forth in this letter, and
subject to the assumptions, limitations and qualifications and other matters set
forth in this letter, we are of the opinion that if the FDIC were to be
appointed as conservator or receiver for Key pursuant to Section 11(c) of the
FDIA, and a court were to determine that either (i) the transfer to the
Depositor by Key pursuant to the Loan Purchase Agreement of Key's right, title
and interest in and to its Mortgage Loans was not a true sale and absolute
conveyance of the Mortgage Loans and were to determine that they constitute a
borrowing by Key secured by the Security Interest or (ii) if such transfer was a
true sale and absolute conveyance, but the Mortgage Loans transferred to the
Depositor were treated as assets of Key in an FDIC conservatorship or
receivership proceeding, then:
(1) the Security Interest would be enforceable against Key notwithstanding
the appointment of the FDIC as conservator or receiver for Key;
(2) the Security Interest would not be subject to avoidance by the FDIC as
conservator or receiver for Key; and
(3) to the extent that the Uniform Commercial Code ("UCC") is applicable to
the Security Interest and governs the creation of security interests in the
Mortgage Loans, while we do not hold ourselves out as experts on the laws of New
York or Minnesota, we have reviewed the Hawkland UCC Series with respect to the
UCC in effect in the States of New York and Minnesota, and based solely upon our
review thereof, the Security Interest in the Instruments and Cash will be
perfected by continuous possession of the Instruments and Cash at all times by
the Trustee in the State of Minnesota and such security interest will have
priority over all other security interests in the Instruments and Cash.
In an insolvency proceeding for Key, the United States Bankruptcy Code (the
"BANKRUPTCY CODE") would not apply.(4) Therefore, none of the provisions of the
Bankruptcy Code (including those that impact the right of a secured creditor to
liquidate collateral and those concerning "preferential" transfers) would apply
in the event of the insolvency of Key. The FDIC is authorized under Sections
11(c)(1) and (2) of the FDIA to be appointed and accept appointment as
conservator, and is required to be appointed as receiver, for a national bank
such as Key.
The FDIC as conservator or receiver is granted the powers set forth in
Section 11 of the FDIA. Section 11(e) of the FDIA authorizes the FDIC as
conservator or receiver to "repudiate" certain "contracts." However, the FDIA
does not grant the FDIC as conservator or receiver the general power to avoid
valid perfected security interests, provided that certain written agreement
requirements and
-------------------------------
(4) U.S.C. ss 109(b)(2) and (d)
D-3C-5
<PAGE>
other requirements are satisfied. In this respect, Section 11(e)(11) of the FDIA
states that no provision of this subsection shall be construed as permitting the
avoidance of any legally enforceable(5) or perfected security interest in any of
the assets of any depository institution except where such an interest is taken
in contemplation of the institution's insolvency or with the intent to hinder,
delay or defraud the institution or the creditors of the institution.
If the FDIC as receiver or conservator were to repudiate any agreement, the
liability of the FDIC would be limited to actual direct compensatory damages
determined as of the date of the appointment of the conservator or receiver. See
12 U.S.C.ss.1821(e)(3)(A). "Actual direct compensatory damages" does not include
punitive or exemplary damages, damages for lost profits or opportunity or
damages for pain and suffering. See 12 U.S.C.ss.1821(e)(3)(B).
The FDIA authorizes the FDIC as receiver to determine claims against an
insured depository institution in receivership. See 12 U.S.C. ss. 1821(d)(3)(A).
This authorization appears to include the authority, at least in certain cases,
to determine a "claim of security." See 12
U.S.C.ss. 1821(d)(5)(D). Section 11(d)(5) of the FDIA provides that before
the end of the 180-day period beginning on the date that a claim is filed with
the FDIC as receiver, the FDIC shall determine whether to allow or disallow the
claim. The FDIC is required by Section 11(d)(8) of the FDIA to establish a
procedure for expedited relief for claimants alleging (i) the existence of a
perfected security interest in assets of a depository institution for which the
FDIC has been appointed receiver, and (ii) that irreparable injury will occur if
the routine claims procedure is followed. Section 11(d)(8)(B) of the FDIA
provides that before the end of the 90-day period beginning on the date any
claim is filed in accordance with such expedited relief determination
procedures, the FDIC shall determine whether to allow or disallow a claim, or
whether the claim shall be determined pursuant to the claims procedure.
Section 11(d)(5)(D) of the FDIA states that the FDIC as receiver may
disallow any portion of a claim to security which is not proved to the
satisfaction of the receiver. The FDIC may treat the portion of a secured claim
exceeding the fair market value of the security as an unsecured claim and
payment on such unsecured portion of the claim will only be made in connection
with the disposition of all claims of unsecured creditors of the institution.
Section 11(d)(5)(E) of the FDIA states that no court may review the FDIC's
determination to disallow a claim of security not proved to the FDIC's
satisfaction.
Certain agreements to which Key is party may be invalid against the FDIC.
Section 13(e)(1) of the FDIA provides:
No agreement which tends to diminish or defeat the interest of the [FDIC]
in any asset acquired by it under this section or Section 11 [of the FDIA] . . .
shall be valid against the [FDIC] unless such agreement --
(A) is in writing,
----------------------------
(5) The FDIC has taken the position that "legally enforceable" for this purpose
requires compliance with Sections 11(d)(9), 11(n)(4)(I) and 13(e) of the FDIA.
See Security Interest Policy Statement (defined below).
D-3C-6
<PAGE>
(B) was executed by the depository institution and any person claiming an
adverse interest thereunder, including the obligor, contemporaneously with the
acquisition of the asset by the depository institution,
(C) was approved by the board of directors of the depository institution or
its loan committee, which approval shall be reflected in the minutes of said
board or committee, and
(D) has been, continuously, from the time of its execution, an official
record of the depository institution.
12 U.S.C.ss.1823(e) (emphasis added).
A recent federal regulation(6) effective September 11, 2000 specifically
dealing with the FDIC's treatment of securitization transactions (the
"SECURITIZATION REGULATION") prohibits the FDIC, by exercise of its authority to
disaffirm or repudiate contracts under Section 11(e) of the FDIA, from
reclaiming, recovering, or recharacterizing the ownership of any financial
assets transferred by an insured depository institution in connection with a
securitization transaction, provided that (i) the transfer meets all conditions
for sale accounting treatment under generally accepted accounting principles,
other than the "legal isolation" condition as it applies to insured depository
institutions, and (ii) the insured depository institution received adequate
consideration for the transfer at the time of the transfer and the documentation
effecting the transfer reflects the intent of the parties to treat the
transaction as a sale, and not as a secured borrowing, for accounting purposes.
12 C.F.R. ss.ss. 360.0(b) and (c). The Securitization Regulation expressly
reserves the FDIC's powers as conservator or receiver to (i) disaffirm or
repudiate any agreement imposing continuing obligations or duties upon the
institution in conservatorship or receivership and (ii) take any action or
exercise any power not prohibited by the regulation, including rights, powers,
and remedies regarding fraudulent transfers or transfers taken in contemplation
of the institution's insolvency or with the intent to hinder, delay, or defraud
the institution or its creditors. Id. at ss.ss. 360.6(d) and (e).
The Securitization Regulation provides further that the FDIC shall not seek
to avoid an otherwise legally enforceable securitization agreement executed by
an insured depository institution solely because such agreement does not meet
the "contemporaneous" requirement of Sections 11(d)(9), 11(n)(4)(I), and 13(e)
of the FDIA. 12 C.F.R.ss.360.6(f).
Prior to the adoption of the Securitization Regulation, in 1993 the FDIC
adopted a "Statement of Policy Regarding Treatment of Security Interests After
Appointment of the FDIC as Conservator or Receiver"(7) (the "SECURITY INTEREST
POLICY STATEMENT"). In the Security Interest Policy Statement, the FDIC
indicates that, if certain conditions are met, the FDIC as conservator or
receiver, will not seek to avoid an otherwise legally enforceable and perfected
security interest solely because the secured obligation or collateral subject to
the security interest (i) was not acquired by the depository institution
contemporaneously with the approval and execution of the security agreement
granting the security interest and/or (ii) may change, increase or be subject to
substitution from time to time during the period that the security interest is
enforceable and perfected. The referenced conditions are (a) the
-----------------------
(6) 12 C.F.R. ss. 360.6.
(7) 58 Fed. Reg. 16833 (Mar. 31, 1993). In the Security Interest Policy
Statement, the FDIC cites previous FDIC general counsel opinions supporting its
position, e.g., FDIC Advisory Opinion 4537 (Apr. 2, 1991) and FDIC Advisory
Opinion 4423 (Dec. 15, 1989).
D-3C-7
<PAGE>
agreement was undertaken in the ordinary course of business, not in
contemplation of insolvency, and with no intent to hinder, delay or defraud the
depository institution or its creditors; (b) the secured obligation represents a
bona fide and arm's length transaction; (c) the secured party or parties are not
insiders or affiliates of the depository institution; (d) the grant or creation
of the security interest was for adequate consideration; and (e) the security
agreement evidencing the security interest is in writing, was approved by the
depository institution's board of directors or loan committee (which approval is
reflected in the minutes of a meeting of the board of directors or committee)
and has been continuously from the time of its execution, an official record of
the depository institution.
We believe that the conditions set forth in the Securitization Regulation
and the Security Interest Policy Statement described above are covered by the
assumptions in this letter and that the protections afforded by the
Securitization Regulation and the Security Interest Policy Statement would apply
to the Transactions.
Section 15(b)(2) of the FDIA provides that no property of the FDIC shall be
subject to levy, attachment, garnishment, foreclosure or sale without the
consent of the FDIC. In 1992, the FDIC issued a "Statement of Policy on
Foreclosure Consent and Redemption Rights"(8) (the "FORECLOSURE POLICY
STATEMENT"), wherein the FDIC stated that Section 15(b)(2) of the FDIA applies
to all property held by the FDIC acting as receiver or in its corporate
capacity. Pursuant to the Foreclosure Policy Statement, the FDIC grants its
consent to any foreclosure by the holder of a "consensual security interest"
pursuant to a "bona fide mortgage, deed of trust, pledge (with respect to
personalty) or other similar security instrument which is senior to the FDIC's
interest." Pursuant to the Foreclosure Policy Statement, the consent of the FDIC
is not required if the FDIC has been appointed as conservator. Accordingly,
based on the reasoning set forth herein and subject to the assumptions,
limitations and qualifications herein (including the assumption that the FDIC
does not revoke the Foreclosure Policy Statement), if the matter were properly
briefed and presented, Section 15(b)(2) of the FDIA should not operate to stay
foreclosure by the Depositor or the Trustee on the Security Interest in the
Mortgage Loans.
A court might hold that a secured creditor seeking remittance of
collections of collateral held by the FDIC as receiver of an insured depository
institution must exhaust its remedies under the claims procedure set forth in
the FDIA before pursuing any available judicial remedies. We note that in a
letter dated December 15, 1989,(9) the General Counsel to the FDIC stated that,
subject to the assumptions and qualifications therein, a secured creditor of
such an institution could liquidate the creditor's properly pledged collateral
by commercially reasonable "self-help" methods, provided that no involvement of
the receiver was required and there was a default other than through an ipso
facto provision and assuming an arms length, bona fide transaction, not
involving an affiliate or insider, which would pass muster under appropriate
fraudulent conveyance law or other applicable law and which involved a legally
perfected security interest enforceable under other applicable law. However, the
General Counsel also stated, "[i]f some action is required by the receiver or
liquidation would require judicial action then the claims process in [the FDIA]
would have to be followed." We also note that the FDIA authorizes the FDIC to
obtain a stay of any judicial action or proceeding to which an insured
depository institution in receivership or conservatorship is or may become a
party. See 12 U.S.C. ss. 1821(d)(12).
------------------------
(8) 57 Fed. Reg. 29491 (Jul. 1, 1992).
(9) FDIC 89-49, [1989-1990 Transfer Binder] Fed. Banking L. Rep. (CCH)P. 81,265
(Dec. 15, 1989).
D-3C-8
<PAGE>
If the FDIC were appointed as receiver or conservator of Key, it would
have, in addition to the powers conferred on it by Section 11 of the FDIA, the
powers conferred on it under any provision of law other than the FDIA,
applicable to a conservator or receiver of a federal depository institution. See
12 U.S.C. ss. 1821(c)(2). In this regard, we note that 12 U.S.C. ss. 91 provides
for the voiding of payments made by a national banking association, such as Key,
after the commission of an act of insolvency or in contemplation thereof, made
with a view to prevent the application of its assets or with a view to the
preference of one creditor to another.
Notwithstanding anything herein to the contrary, no opinion is expressed in
this letter as to:
(i) whether a court may temporarily restrain the exercise of the
Depositor's or Trustee's rights to and ownership or security interest in
the Mortgage Loans regardless of who has the possession of the property in
question; further, we point out that delays in the exercise of the rights
and interests of the Depositor or the Trustee may occur with respect to the
Mortgage Loans in the possession of a receiver or conservator or an
appointee, regardless of whether the transaction constitutes a true sale or
secured transaction, by actions unilaterally taken by the receiver or
conservator or such appointee prior to instituting any action to enforce
the Depositor's or the Trustee's rights with respect to the Mortgage Loans;
(ii) any assets or property other than the Mortgage Loans;
(iii) the enforceability of any interest of Key in the Mortgage Loans;
(iv) whether the administrative expenses of the FDIC or any other receiver
or liquidator of Key will have priority over the Depositor's or any other
Person's interest in the Mortgage Loans;
(v) whether the claims process must be complied with and as to whether
compliance with the claims process set forth in the FDIA would result in a
delay in the enforcement of the interest of the Depositor or the Trustee in
the Mortgage Loans;
(vi) whether a receiver or conservator for Key may have the power to
prevent the liquidation of the Mortgage Loans or the exercise of other
rights and remedies where the only event that has occurred is the
conservatorship, receivership or insolvency of Key;
(vii) the ability of the Depositor or the Trustee to attach or execute upon
any assets in the possession of the FDIC, as receiver or conservator;
(viii) whether the method of disposition of the Mortgage Loans provided by
the Loan Purchase Agreement might be altered by the FDIC or the court in a
manner that the FDIC or the court determines would adequately protect the
rights of the Depositor, the Trustee and/or the Certificateholders;
(ix) any Mortgage Loans not transferred to the Depositor pursuant to the
Loan Purchase Agreement prior to the appointment of a conservator or
receiver for Key, and the proceeds thereof;
(x) the ability of the FDIC to redeem or prepay the obligations of Key to
any person;
D-3C-9
<PAGE>
(xi) any obligation of Key or any right of the Depositor, the Trustee or
any of the Certificateholders with respect to any amounts in excess of
actual direct compensatory damages determined as of the date of the
appointment of the FDIC as conservator or receiver, or as to any security
interest securing such excess;
(xii) any right of the FDIC to challenge the propriety or validity of a
foreclosure sale by the Trustee with respect to the Mortgage Loans;
(xiii) whether any transfer or obligation is avoidable as a preference or
fraudulent transfer or conveyance;
(xiv) the ability of the FDIC, as conservator or receiver, to transfer the
Loan Purchase Agreement without any approval or consent of the parties,
pursuant to 12 U.S.C.ss.1821(d)(2)(G);
(xv) the security interest of the Trustee for the benefit of any
Certificateholder (or the holder of any beneficial interest in a
Certificate) which is Key or any insider or affiliate of Key; or
(xvi) the enforceability of security interests in proceeds of Mortgage
Loans that are not identifiable cash proceeds.
We note that we have found no case law directly on point(10) and we note
that our opinions are based in part on our review of relevant statutory law and
federal regulations discussed in this letter, published case law under the
statutory and regulatory law, the policy statements of the FDIC described or
cited in this letter and the letters issued by the then General Counsels or the
staff of the FDIC described or cited in this letter. We express no opinion as to
the consequences of a discontinuation or revocation by the FDIC or a court of
those policy statements or letters, or the refusal by the FDIC or a court to
apply or follow those policy statements or letters.
Our opinions set forth above are subject to our assumption that the parties
to the Loan Purchase Agreement and their respective successors or assigns will
act reasonably and in good faith, and the qualifications that the remedies of
specific performance, injunctive relief and other similar equitable remedies may
not be available to persons seeking to enforce the Security Interest in all
circumstances and the availability of any remedy may depend on the materiality
of the action on account of which such remedy is sought.
Our opinions are qualified as follows:
-----------------------------
(10) We note that the Second Circuit Court of Appeals in Westport Bank & Trust
Company v. Geraghty, 90 F.3d 661 (2d Cir. 1996), affirmed a district court
judgment in favor of the FDIC on its claims to the assets of three trusts
created by Citytrust, an FDIC-insured depository institution that became subject
to FDIC receivership. The trusts at issue in Westport Bank were created for the
benefit of two employees of Citytrust to secure the rights of the employees to
severance benefits under their respective employment agreements. We are of the
view that the Second Circuit decision in Westport Bank is not material because
it did not address the issue whether (assuming that the trust assets were
collateral for the severance obligations) a security interest in the trust
assets would be enforceable against the FDIC.
D-3C-10
<PAGE>
(i) The assumptions set forth in this letter are and continue to be true in
all respects relevant to the opinions in this letter, there are no
additional facts that would affect the validity of the assumptions set
forth in this letter or upon which the opinions in this letter are based,
such case is properly presented and argued, and the law is properly
applied.
(ii) We express no opinion as to compliance or the effect of noncompliance
by the Depositor or the Trustee with any state or federal laws or
regulations applicable to it in connection with the Transactions.
(iii) We have assumed that the Instruments exist, that each of Key and the
Depositor has sufficient rights in the Instruments and Cash for the
Security Interest to attach and that each of Key and the Depositor has been
given "value" therefor as defined in the UCC, and we express no opinion as
to the nature or extent of either Key's or the Depositor's rights in, or
title to, any of the Mortgage Loans.
(iv) We call to your attention that security interests in proceeds are
limited to the extent set forth in Section 9-306 of the UCC and to property
of a type subject to the UCC.
(v) We express no opinion as to priority with respect to (i) liens for the
payment of federal, state or local taxes or charges which are given
priority by operation of law, including, without limitation, under Sections
6321 and 6323(c)(2) and (d) of the Internal Revenue Code; (ii) claims of
the United States of America under the federal priority statutes (31 U.S.C.
Sec. 3713 et seq.); (iii) liens in favor of the United States of America,
any state or local governmental authority or any agency or instrumentality
thereof, including, without limitation, liens arising under Title IV of
ERISA; (iv) liens of a collecting bank under Section 4-210 of the UCC; (v)
the rights of a "lien creditor" as defined in Section 9-301(3) of the UCC
which is entitled to priority under Section 9-301(4) thereof, (vi) security
interests in respect of proceeds of other collateral (other than collateral
constituting Instruments), to the extent that the applicable secured party
has a perfected security interest in such proceeds under Section 9-306 and
such interest is entitled to priority under Section 9-312 of the UCC; and
(vii) the priority of a holder in due course under Section 9-309 of the UCC
in the event that the promissory notes are negotiated to a person or entity
other than the Trustee or its agent, and we render no opinion with respect
to priority in any such circumstances.
We render no opinion with respect to the perfection or non-perfection of
the security interest of the Trustee, for the benefit of the Certificateholders,
with respect to any collateral that is not an "instrument" (or identifiable cash
proceeds therefrom) within the meaning of Section 9-105(1)(i) of the UCC.
We call to your attention that the Security Interest may be subject to the
rights of obligors, claims and defenses of the issuers of the Instruments and
the terms of the agreements pursuant to which the Instruments are issued. Except
as expressly provided herein, we express no opinion as to the rights of the
Trustee as against the rights of the Mortgagors or any other Person with respect
to any Mortgage Loan.
We express no opinion with respect to the enforceability of any Mortgage
Loan or the existence of any claims, rights, defenses, counterclaims or
objections in favor of the mortgagor thereon that can be asserted against or are
effective against Key, the Depositor, the Trustee or the Certificateholders. We
note that unless the mortgagor with respect to a Mortgage Loan has received
D-3C-11
<PAGE>
notice of the assignment thereof (such notice not being contemplated by the Loan
Purchase Agreement), bona fide payments made by such mortgagor to Key or a
second assignee of such Mortgage Loan shall discharge such mortgagor's
obligations to the extent of such payment, and such payment will only be
recoverable from Key or, in certain cases, from such second assignee, as the
case may be.
We render no opinion with respect to any real property or rights in real
property or the proceeds thereof.
(x) We have assumed that there are no agreements prohibiting, restricting
or conditioning the assignment of any portion of the Mortgage Loans.
(xi) We express no opinion with respect to the Security Interest of the
Depositor or the Trustee in any rights in and to any property that
purportedly secures the Instruments.
(xii) We call to your attention that the Security Interest will be
perfected only if possession thereof is obtained and maintained.
This letter speaks only as of the date hereof and we undertake no
obligation to revise this letter after the date hereof. To the extent the
opinions in this letter rely on letters issued by the FDIC or its staff, we note
that it is the policy of the FDIC not to issue binding advisory opinions as to
positions it would adopt in hypothetical situations that arise in future
receiverships or conservatorships of insured depository institutions and that
the FDIC's actions as receiver or conservator are determined on a case by case
basis, in accordance with applicable laws and in light of the specific factual
situation. Therefore, our opinions are limited to our views as to what a court
would hold in a properly presented case in response to a challenge by the FDIC
as receiver or conservator, to the matters presented in this letter.
Furthermore, we note that a court's decision regarding matters upon which we
opine in this letter would be based on the court's own analysis and
interpretation of the factual evidence before the court and of applicable legal
principles. A court could reach conclusions different from those set forth in
this letter.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to parties involved in the Transactions
and their counsel as part of the closing set related to the Transactions)
without our prior written approval. We disclaim any obligation to update this
letter for events occurring or coming to our attention after the date hereof,
notwithstanding that such changes may affect the views or beliefs expressed in
this letter.
Very truly yours,
POLSINELLI SHALTON & WELTE, P.C.
D-3C-12
<PAGE>
EXHIBIT D-3D
FORM OF OPINION OF PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
PURSUANT TO SECTION 7(IX)
November 7, 2000
DLJ Commercial Mortgage Corp. Moody's Investors Service, Inc.
277 Park Avenue 99 Church Street
New York, New York 10172 New York, New York 10007
Donaldson, Lufkin & Jenrette Wells Fargo Bank Minnesota, N.A.
Securities Corporation 45 Broadway, 12th Floor
277 Park Avenue New York, New York 10006
New York, New York 10172
Salomon Smith Barney Inc. Fitch, Inc.
388 Greenwich Street One State Street Plaza, 31st Floor
New York, New York 10013 New York, New York 10004
Prudential Securities Incorporated McDonald Investments Inc.
One New York Plaza, 18th Floor 800 Superior Avenue
New York, New York 10292-2018 Cleveland, Ohio 44114
Re: Pooling and Servicing Agreement among DLJ Commercial Mortgage
Corp., as Depositor, Key Corporate Capital Inc. as Master
Servicer and Special Subservicer, Midland Loan Services, Inc., as
Special Servicer and Wells Fargo Bank Minnesota, N.A., as
Trustee, dated as of November1, 2000 ("PSA") and Mortgage Loan
Purchase Agreement between KeyBank National Association, as
Seller and DLJ Commercial Mortgage Corp., as Purchaser ("MLPA")
dated October 27, 2000 (collectively, "Agreements")
Ladies and Gentlemen:
We have acted as special local counsel to Key Corporate Capital Inc.
("Company"), as Master Servicer and Special Subservicer in connection with the
execution and delivery of the PSA and to KeyBank National Association
("KeyBank"), as seller in connection with the execution and delivery of the
MLPA. All capitalized terms used, but not defined in this letter, shall have the
meanings set forth in the MLPA.
In connection with rendering our opinion, we have reviewed the PSA and the
MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts were not independently established, relied
upon the representations of the Company and KeyBank in the Agreements.
D-3D-1
<PAGE>
In rendering the opinions expressed herein, we have assumed (i)the
genuineness of all signatures by each party; (ii)the authenticity of all
documents submitted to us as originals; (iii)the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv)the conformity in all material respects of the final executed form of the
MLPA with the version submitted to us on October21, 2000 and the conformity in
all material respects of the final executed form of the PSA with the version
submitted to us in draft form on October30, 2000, (v)the due formation and valid
existence ofthe parties to the Agreements; and (vi)the due authorization,
execution and delivery of the Agreements by the parties thereto, and their power
and authority (including the obtaining of all necessary permits, licenses and
approvals) to execute and perform each of the Agreements.
In addition we have assumed that on the date hereof (a)the Depositor,
KeyBank and the Underwriter will at all times and in all respects which are
material to the opinions expressed herein, comply with all material provisions
in the Agreements, including, without limitation, the provisions therein
relating to the delivery to the Trustee of the Mortgage Files for the Mortgage
Loans; and (b)that (1) KeyBank has rights (as defined in Section9-203(i)(c) of
the UCC) in the Mortgage Loans purported to be conveyed by the MLPA, (2)new
value has been given, (3)the Depositor or the Trustee takes possession of the
Mortgage Loans consisting of Instruments in the ordinary course of its business,
and (4)there is no agreement other than the Agreements which postpones or
otherwise governs the attachment of the Depositor's security interest in the
Mortgage Loans. We express no opinion as to the nature or extent of KeyBank's
rights in, or title to, any of the Mortgage Loans.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes a legal, valid and binding agreement of the
Company and is enforceable in accordance with its terms.
2. The MLPA (a) constitutes a legal, valid and binding agreement of
KeyBank and is enforceable in accordance with its terms, and (b) grants to
the Depositor a security interest in the Mortgage Loans in favor of the
Depositor.
3. Pursuant to Section9-203(1) of the UCC, Depositor's security
interest in the Mortgage Loan's will attach when the Mortgage Loans are in
the possession of the Depositor or the Trustee.
Our opinions concerning the enforceability of the PSA and MLPA are subject
to the qualification that:
(a) enforceability may be limited by or subject to (i)state and/or federal
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or
other laws and rules of law affecting the enforcement generally of creditors'
rights and remedies; (ii)an implied duty of good faith; and (iii) to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in whole or
in part, although the inclusion of such provisions does not render any of the
Agreements invalid as a whole, and the Agreements contain legally adequate
provisions for enforcing the other obligations of the parties thereunder and for
the practical realization of the principal rights and benefits purported to be
afforded thereby, subject to the economic consequences of any judicial,
administrative, or other procedural delay in connection with such enforcement
and realization.
D-3D-2
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In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and Section 254 of the New York Real
Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
We are qualified to practice law in the State of New York and we do not
purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York and the federal law of the UnitedStates. This letter is furnished to
you solely for your benefit in connection with the transactions contemplated by
the Agreements. This opinion is not to be used, circulated, quoted or otherwise
relied upon by any other person or entity or, for any other purpose, without our
prior written consent.
Very truly yours,
D-3D-3
<PAGE>
EXHIBIT D-3E
FORM OF LETTER OF POLSINELLI SHALTON & WELTE, P.C.,
PURSUANT TO SECTION 7(X)
November 7, 2000
DLJ Commercial Mortgage Corp. Wells Fargo Bank Minnesota, N.A.
11 Madison Avenue 45 Broadway, 12th Floor
New York, New York 10010 New York, New York 10006
Donaldson, Lufkin & Jenrette Moody's Investors Service, Inc.
Securities Corporation 99 Church Street
11 Madison Avenue New York, New York 10007
New York, New York 10010
Fitch, Inc.
Prudential Securities Incorporated One State Street Plaza, 31st Floor
One New York Plaza, 18th Floor New York, New York 10004
New York, New York 10292-2018
McDonald Investment Inc.
Salomon Smith Barney Inc. 800 Superior Avenue
388 Greenwich Street Cleveland, Ohio 44114
New York, New York 10013
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KEYBANK") and Key Corporate Capital Inc. ("KCCI"), in connection with the
Pooling and Servicing Agreement ("POOLING AND SERVICING AGREEMENT") dated as of
November 1, 2000, among DLJ Commercial Mortgage Corp. as Depositor (the
"DEPOSITOR"), KCCI as Master Servicer and Special Sub-Servicer, Midland Loan
Services, Inc. as Special Servicer, and Wells Fargo Bank Minnesota, N.A. as
Trustee, and in connection with the Mortgage Loan Purchase Agreement ("LOAN
PURCHASE AGREEMENT") dated as of October 27, 2000, among KeyBank as Seller and
the Depositor as Purchaser.
This letter is delivered to you at the request of KeyBank pursuant to the
MLPA, the Underwriting Agreement ("UNDERWRITING AGREEMENT") dated October 27,
2000, among the Depositor, Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC"), Prudential Securities Incorporated ("PSI"), Credit Suisse First
Boston Corporation ("CSFB"), Salomon Smith Barney Inc. ("SSB"), and McDonald
Investments Inc. ("MCDONALD") as Underwriters (in such capacity, collectively,
the "UNDERWRITERS") and pursuant to the Certificate Purchase
D-3E-1
<PAGE>
Agreement ("CERTIFICATE PURCHASE AGREEMENT") dated October 27, 2000, among the
Depositor, PSI, CSFB and DLJSC as Placement Agents (in such capacity,
collectively, the "PLACEMENT AGENTS").
The Certificates to be issued by the Depositor pursuant to the Pooling and
Servicing Agreement are divided into classes. The Certificates of Classes A-1A,
A-1B, A-2, A-3, A-4, B-1, B-2, and B-3 (collectively, the "PUBLICLY OFFERED
CERTIFICATES") will be sold to the Underwriters pursuant to the Underwriting
Agreement and offered for sale to the public pursuant to a prospectus dated
October 17, 2000 ("BASE PROSPECTUS"), as supplemented by a prospectus supplement
dated October 27, 2000 ("PROSPECTUS SUPPLEMENT" and along with the Base
Prospectus, the "PROSPECTUS"). The Certificates of Classes S, B-4, B-5, B-6,
B-7, B-8, B-9, C, D, E and R (the "PRIVATELY OFFERED CERTIFICATES" and along
with the Publicly Offered Certificates, the "CERTIFICATES") will be sold to the
Placement Agents pursuant to the Certificate Purchase Agreement. The Placement
Agents will offer the Privately Offered Certificates pursuant to a private
placement memorandum dated October 27, 2000 (the "PRIVATE PLACEMENT
MEMORANDUM"). Capitalized terms not otherwise defined herein are defined as set
forth in the Underwriting Agreement or the Pooling and Servicing Agreement, as
applicable.
The purpose of our professional engagement was to advise with respect to
legal matters and not to determine or verify facts. Many of the determinations
involved in the preparation of the Prospectus Supplement and the Private
Placement Memorandum were factual. We have not independently verified, do not
make any representation as to, and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Prospectus
Supplement or the Private Placement Memorandum.
In connection with the delivery of this letter, we have examined originals
or copies, certified or otherwise identified to our satisfaction of the
Prospectus, the Private Placement Memorandum, the Loan Purchase Agreement, the
Pooling and Servicing Agreement, and other such documents and records as we have
deemed relevant or necessary as the basis for the views expressed in this
letter. We have obtained such certificates from and made such inquiries of
officers and other representatives of KeyBank and KCCI as we have deemed
relevant or necessary as the basis of the views expressed in this letter. We
have relied upon and assumed the accuracy of, such other documents and records,
such certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which the views expressed in this letter are
based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Loan
Purchase Agreement and the Pooling and Servicing Agreement and underlying the
assumptions set forth below or that are otherwise factually relevant to the
opinions expressed in this letter, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures (except for the signatures of officers
of KCCI and KeyBank) and the authenticity of all documents submitted to us as
originals, (iv) the conformity to the originals of all documents submitted to us
as certified conformed or photostatic copies, (v) the due authorization by all
necessary action, and the due execution and delivery, of each of the Loan
Purchase Agreement and the Pooling and Servicing Agreement by the parties
thereto and the constitution of each of the Loan Purchase Agreement and the
Pooling and Servicing Agreement as the legal, valid and binding obligations of
each party thereto,
D-3E-2
<PAGE>
enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, and similar laws relating to or affecting the
enforceability of creditors' rights generally, the effect of general equitable
principals (in equity or at law), and the availability of equitable remedies,
(vi) the compliance with the relevant provisions of each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement by the parties thereto, (vii)
the conformity, to the requirements of each of the Loan Purchase Agreement and
the Pooling and Servicing Agreement, of the Mortgage Loan documents delivered to
the Depositor by KeyBank, (viii) the absence of any agreement that supplements
or otherwise modifies the agreements expressed in each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement, and (ix) the conformity of
the text of each document filed with the Securities Exchange Commission through
the EDGAR system to the printed documents reviewed by us. In rendering this
letter, we do not express any view concerning the laws of any jurisdiction other
than the federal laws of the United States of America.
In the course of acting as special counsel to KeyBank and KCCI we have
responded to inquiries from time to time by KeyBank's closing coordinators,
reviewed title insurance commitments and surveys and prepared most of the loan
documents for the Mortgage Loans originated by National Realty Funding L.C.
prior to January 31, 2000 and acquired by KeyBank on or about January 31, 2000
and those originated out of the Kansas City office of Key Commercial Mortgage
subsequent to January 31, 2000. In connection with the preparation of the
Prospectus Supplement and the Private Placement Memorandum, we met in
conferences and participated in telephone conversations with officers and
employees of KeyBank and KCCI and counsel, officers and other representatives of
the Depositor, the Underwriters, the Placement Agents and the other Mortgage
Loan Sellers, during which conferences and telephone conversations the contents
of the Prospectus Supplement and the Private Placement Memorandum were
discussed. We have not independently undertaken any procedures that were
intended or likely to elicit information concerning the accuracy, completeness
or fairness of the statements made in the Prospectus Supplement or the Private
Placement Memorandum. On the basis of the foregoing and subject to the
limitation set forth herein, nothing has come to our attention to cause us to
believe that either the Prospectus Supplement or the Private Placement
Memorandum, as of their respective dates or as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that we have not been requested to and we do not
make any comment in this paragraph with respect to (i) financial statements,
schedules or other accounting, financial, or statistical data or other
information of that nature contained in or omitted from the Prospectus
Supplement or the Private Placement Memorandum, or (ii) information contained in
the computer diskette or the CD-ROM accompanying the Prospectus Supplement which
we assume, but have not verified, does not vary from and is not different in any
way from the information contained in the Prospectus Supplement). In that
connection, we advise you that we have, as to materiality, relied to the extent
we deemed appropriate on the judgment of officers and other representatives of
KeyBank, KCCI and their affiliates. In addition, in that connection we call to
your attention that, with your knowledge and consent, we have not (except as
described above) examined or otherwise reviewed any of the Mortgage Files in
connection with the transactions contemplated by the Pooling and Servicing
D-3E-3
<PAGE>
Agreement and the Loan Purchase Agreement (collectively, the "Transactions"),
any particular documents contained in such files or any other documents with
respect to the Mortgage Loans.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of KeyBank or KCCI, no information that would give us current
actual knowledge of the inaccuracy of such statement has come to the attention
of those attorneys currently in this firm who have been actively involved in
representing KCCI or KeyBank in connection with the Transactions or in
connection with the origination of any of the mortgage loans being sold by
KeyBank as part of the Transactions. However, we have not undertaken any
independent investigation to determine the accuracy of any such statement, and
any limited inquiry undertaken by us during the preparation of this letter
should not be regarded as such an investigation; no inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be
drawn from the fact of our representation of KCCI or KeyBank.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
POLSINELLI SHALTON & WELTE, P.C.
D-3E-4
<PAGE>
EXHIBIT M-3
FORM OF PMCF MORTGAGE LOAN PURCHASE AGREEMENT
[See Attached]
M-3-1
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 27, 2000, between Prudential Mortgage Capital Funding,
LLC, a Delaware limited liability company ("PMCF"), as seller (in such capacity,
together with its successors and permitted assigns hereunder, the "Seller"),
Prudential Mortgage Capital Company, LLC, a Delaware limited liability company
("PMCC"), as an additional party responsible for certain of the Seller's
obligations hereunder (in such capacity, together with its successors and
permitted assigns hereunder, the "Additional Party") and DLJ Commercial Mortgage
Corp., a Delaware corporation ("DLJCMC"), as purchaser (in such capacity,
together with its successors and permitted assigns hereunder, the "Purchaser").
RECITALS
PMCF desires to sell, assign, transfer, set over and otherwise convey to
DLJCMC, without recourse, and DLJCMC desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof.
DLJCMC intends to create a trust (the "Trust"), the primary assets of which
will be a segregated pool of multifamily and commercial mortgage loans that
includes the Mortgage Loans. Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund" will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Moody's Investors Service, Inc. and Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of November 1, 2000 (the "Pooling and Servicing Agreement"), among
DLJCMC, as depositor (in such capacity, the "Depositor"), Key Corporate Capital
Inc. d/b/a Key Commercial Mortgage, as master servicer (in such capacity, the
"Master Servicer") and as special sub-servicer (in such capacity the "Special
Sub-Servicer"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer"), and Wells Fargo Bank Minnesota, N.A., trustee (the "Trustee"),
relating to the issuance of DLJCMC's Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings assigned to them
in the Pooling and Servicing Agreement as in full force and effect on the
Closing Date (as defined in Section 1 hereof). It is anticipated that DLJCMC
will transfer the Mortgage Loans to the Trust contemporaneously with its
purchase of the Mortgage Loans hereunder.
DLJCMC intends to sell the Registered Certificates to Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), Prudential Securities Incorporated
("PSI"), Credit Suisse First Boston Corporation ("CSFB"), Salomon Smith Barney
Inc. ("SSBI") and McDonald Investments Inc. ("McDonald"), pursuant to an
underwriting agreement, dated as of the date
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hereof (the "Underwriting Agreement), among DLJCMC, DLJSC, PSI, CSFB, SSBI and
McDonald; and DLJCMC intends to sell the remaining Certificates (the
"Non-Registered Certificates") to DLJSC, PSI and CSFB, pursuant to a certificate
purchase agreement, dated as of the date hereof (the "Certificate Purchase
Agreement"), between DLJCMC, DLJSC, PSI and CSFB. The Registered Certificates
are more fully described in the prospectus dated October 17, 2000 (the "Basic
Prospectus"), and the supplement to the Basic Prospectus dated October 27, 2000
(the "Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter. The
Non-Registered Certificates are more fully described in the private placement
memorandum dated October 27, 2000 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
PMCF and PMCC will indemnify DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald and
certain related parties with respect to the disclosure regarding the Mortgage
Loans and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated the date hereof (the
"Indemnification Agreement"), among PMCF, PMCC, DLJCMC, DLJSC, PSI, CSFB, SSBI
and McDonald.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 38. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on November 7, 2000 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). As of the
close of business on the respective Due Dates for the Mortgage Loans in November
2000 (individually and collectively, the "Cut-off Date"), the Mortgage Loans
will have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before such date, whether or not
received, of $404,939,362, subject to a variance of plus or minus 5% (the
"Aggregate Cut-off Date Balance"). The purchase price for the Mortgage Loans
shall be as set forth in, or calculated in accordance with, the Term Sheet for
the Joint Conduit Securitizations dated _______, 2000 between DLJSC, PSI, Column
Financial, Inc., PMCC and KeyBank National Association (the "Term Sheet"), and
the Purchaser shall pay such purchase price to the Seller on the Closing Date by
wire transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 39. Conveyance of the Mortgage Loans.
(a) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, the Seller does hereby sell, assign, transfer, set
over and otherwise convey to the Purchaser, without recourse, all of the right,
title and interest of the Seller in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut off Date (other than scheduled payments of interest and principal due on
or before the Cut- off Date), together with all of the right, title and interest
of the Seller in and to the proceeds of any related title, hazard or other
insurance policies and any escrow, reserve or other
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comparable accounts related to the Mortgage Loans and required for the ongoing
administration and servicing of the Mortgage Loans ("Reserves").
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any Additional Collateral (other than Reserves)
with respect to each Mortgage Loan. In addition, with respect to each Mortgage
Loan as to which any Additional Collateral is in the form of a Letter of Credit
as of the Closing Date, the Seller shall cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Purchaser or its designee the Seller's rights as the
beneficiary thereof and drawing party thereunder. Unless the Purchaser notifies
the Seller in writing to the contrary, the designated recipient of the items
described in the second preceding sentence, and the designated beneficiary under
each Letter of Credit referred to in the preceding sentence, shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee of
any notice of any remaining deficiencies to such Mortgage File as of
February 1, 2002, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by Section 2(d) and the Pooling and Servicing Agreement,
record all instruments of transfer and assignment with respect to the
subject Mortgage Loan;
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<PAGE>
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; (ii) any other documents prepared or
delivered by the related Borrowers to the Seller with respect to the Mortgage
Loans and used by the Seller to prepare or assist in preparing Exhibits A-1 and
A-2 to the Prospectus Supplement; and (iii) all Reserves in the possession or
under the control of the Seller that relate to the Mortgage Loans. Unless the
Purchaser notifies the Seller in writing to the contrary, the designated
recipient of the items described in clauses (i), (ii) and (iii) of the preceding
sentence shall be the Master Servicer.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Mortgage Loans that are
required to be recorded or filed, as the case may be, under the Pooling and
Servicing Agreement; provided that the Seller shall not be responsible for
actually recording or filing any such assignments or other instruments of
transfer or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party
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hereunder or under the Pooling and Servicing Agreement, and further except for
actions that the Seller is expressly permitted to complete subsequent to the
Closing Date, the Seller shall, on or before the Closing Date, take all actions
required under applicable law to effectuate the transfer of the Mortgage Loans
by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
SECTION 40. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4, except as expressly
set forth in Section 5.
SECTION 41. Representations, Warranties and Covenants of the Seller, the
Purchaser and the Additional Party.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller and the Additional Party, each of the representations and
warranties set forth in Exhibit B-2. The Additional Party hereby makes, as of
the Closing Date, to and for the benefit of the Purchaser, each of the
representations and warranties set forth in Exhibit B-3. The respective
representations and warranties of the parties hereto set forth in Exhibits B-1,
B-2 and B-3 are hereinafter referred to collectively as the "Corporate
Representations".
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, DLJSC, Prudential, CSFB, SSBI and McDonald) who may be
entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), by the Seller
or the Additional Party, as the case may be, pursuant to Section 5(a) of this
Agreement, each of the representations and warranties set forth in
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Exhibit B-1 and Exhibit C to this Agreement. From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in or made pursuant to this Section 4 shall survive delivery of the
respective Mortgage Files to the Purchaser or its designee and shall inure to
the benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement or assignment. With respect to the Corporate Representations, such
survival shall continue for so long as any of the Mortgage Loans remains
outstanding.
SECTION 42. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller and the Additional Party
thereof in writing and request that the Seller and the Additional Party correct
or cure such Breach or Document Defect. Within 90 days of the earlier of
discovery or receipt of written notice by the Seller that there has been a
Material Breach or a Material Document Defect (such 90-day period, the "Initial
Resolution Period"), the Seller shall (i) cure such Material Breach or Material
Document Defect, as the case may be, in all material respects or (ii) repurchase
each affected Mortgage Loan (each, a "Defective Mortgage Loan") at the related
Purchase Price in accordance with the terms hereof and, if applicable, the terms
of the Pooling and Servicing Agreement, with payment to be made in accordance
with the reasonable directions of the Purchaser; provided that if the Seller and
the Additional Party certify in writing to the Purchaser (i) that any such
Material Breach or Material Document Defect, as the case may be, does not and
will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (a "Qualified Mortgage"),
(ii) that such Material Breach or Material Document Defect, as the case may be,
is capable of being cured but not within the applicable Initial Resolution
Period, (iii) that the Seller and the Additional Party have commenced and are
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period,
(iv) what actions the Seller and the Additional Party are pursuing in connection
with the correction or cure thereof, and (v) that the Seller and the Additional
Party anticipate that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, in lieu of repurchasing such Defective
Mortgage Loan (but, in any event, no later than such repurchase would have to
have been completed), (i) replace such Defective Mortgage Loan with one or more
substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling
6
<PAGE>
and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall
Amount, such substitution and payment to be effected in accordance with the
terms of the Pooling and Servicing Agreement. Any such repurchase or replacement
of a Defective Mortgage Loan shall be on a whole loan, servicing released basis.
The Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach or Material Document Defect, but if the Seller
discovers a Material Breach or Material Document Defect with respect to a
Mortgage Loan, it will notify the Purchaser. For purposes of remediating a
Material Breach or Material Document Defect with respect to any Mortgage Loan,
"Resolution Extension Period" shall mean the 90-day period following the end of
the applicable Initial Resolution Period.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of the related Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto; provided that no such termination
shall be effected unless and until the Purchaser has received from the Seller
(i) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates;
and provided, further, that the Seller may, at its option, purchase the entire
subject Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased or replaced. If the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph, then, for purposes of (i) determining whether
any Breach or Document Defect is a Material Breach or Material Document Defect,
as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly
7
<PAGE>
Payments due with respect to each Defective Mortgage Loan (if any) after the
Cut-off Date (or, in the case of a Replacement Mortgage Loan, after the date on
which it is added to the Trust Fund) and on or prior to the related date of
repurchase or replacement, shall belong to the Purchaser and its successors and
assigns. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
The Additional Party agrees, in consideration of and as an inducement to
the Purchaser's purchase of the Mortgage Loans from the Seller, to be jointly
and severally liable with the Seller for the full and timely performance by the
Seller of its obligations under this Section 5(a).
It is understood and agreed that the obligations of the Seller and the
Additional Party set forth in this Section 5(a) to cure a Material Breach or a
Material Document Defect or repurchase or replace the related Defective Mortgage
Loan(s), constitute the sole remedies available to the Purchaser with respect to
such Breach or Document Defect.
(b) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller or the Additional Party pursuant to Section 5(a)
that the Purchaser shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller or the Additional
Party, as applicable, in each case without recourse, as shall be necessary to
vest in the Seller or the Additional Party, as applicable, the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Purchaser hereunder.
SECTION 43. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 875 Third Avenue,
New York, New York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and the
Additional Party made pursuant to Section 4 of this Agreement shall be true
and correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly
8
<PAGE>
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and each of the Seller and the Additional Party
shall have the ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or performed by it
after the Closing Date;
(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement;
(vii) the Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 44. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement, duly executed by the Purchaser, the Seller and the
Additional Party;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1A hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which DLJCMC, DLJSC, PSI, CSFB, SSBI, McDonald and the Rating Agencies
(collectively, the "Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement and the Indemnification Agreement, and (B) the
organizational documents of the Seller;
9
<PAGE>
(iv) An Officer's Certificate substantially in the form of Exhibit
D-1B hereto, executed by the Secretary or an assistant secretary of the
Additional Party, in his or her individual capacity, and dated the Closing
Date, and upon which the Interested Parties may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Additional
Party authorizing the Additional Party's entering into the transactions
contemplated by this Agreement, and (B) the organizational documents of the
Additional Party;
(v) A certificate of good standing with respect to the Seller issued
by the Secretary of State of the State of Delaware not earlier than 30 days
prior to the Closing Date, and upon which the Interested Parties may rely;
(vi) A certificate of good standing with respect to the Additional
Party issued by the Secretary of State of the State of Delaware not earlier
than 30 days prior to the Closing Date, and upon which the Interested
Parties may rely;
(vii) A Certificate of the Seller substantially in the form of Exhibit
D-2A hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(viii) A Certificate of the Additional Party substantially in the form
of Exhibit D-2B hereto, executed by an executive officer of the Additional
Party on the Additional Party's behalf and dated the Closing Date, and upon
which the Interested Parties may rely;
(ix) The written opinions of John C. Kelly, Esq. in-house counsel for
each of the Seller and the Additional Party, dated the Closing Date and
addressed to the Interested Parties and the Trustee, which opinions shall
be substantially in the respective forms of Exhibits D-3A and D-3B hereto
(with such additions, deletions or modifications as may be required by
either Rating Agency);
(x) A written opinion of Winston & Strawn, special counsel for the
Seller and the Additional Party, dated the Closing Date and addressed to
the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3C hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(xi) A written opinion of Winston & Strawn, special counsel for the
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3D hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(xii) One or more comfort letters from Arthur Andersen LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, the Interested Parties (other than the
Rating Agencies), stating in effect that, using the assumptions and
methodology used by DLJCMC, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to
10
<PAGE>
the Mortgage Loans set forth in any preliminary Prospectus Supplement, the
Prospectus Supplement and the Memorandum, compared the results of their
calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary
Prospectus Supplement, the Prospectus Supplement and the Memorandum,
respectively, to be in agreement with the results of such calculations; and
(xiii) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 45. Costs. The costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated pursuant to the terms of the
Term Sheet.
SECTION 46. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 277 Park Avenue, 9th
Floor, New York, New York 10172, Attention: N. Dante LaRocca, or such other
address as may be designated by the Purchaser to the Seller in writing, or, if
to the Seller, addressed to the Seller at 100 Mulberry Street, Gateway Center 4,
8th Floor, Newark, New Jersey 07102, Attention: John Kelly, or such other
address as may be designated by the Seller to the Purchaser in writing, or, if
to the Additional Party, addressed to the Additional Party at 100 Mulberry
Street, Gateway Center 4, 8th Floor, Newark, New Jersey 07102, Attention: Duane
Tucker, or such other address as may be designated by the Additional Party to
the Purchaser in writing.
SECTION 47. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 48. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed
11
<PAGE>
to be a grant by the Seller to the Purchaser of a first priority security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans and all amounts payable to the holder(s) of the Mortgage Loans in
accordance with the terms thereof (other than scheduled payments of interest and
principal due on or before the Cut-off Date) and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (c) the assignment by DLJCMC to the Trustee of its interests in
the Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New Jersey Uniform Commercial
Code, the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; and (e) notifications to, and
acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 49. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller or the Additional Party delivered pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser, notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
SECTION 50. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 51. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, each of the
Purchaser, the Seller and the Additional Party hereby irrevocably (i) submits to
the jurisdiction of any New York State and federal courts sitting in
12
<PAGE>
New York City with respect to matters arising out of or relating to this
Agreement; (ii) agrees that all claims with respect to such action or proceeding
may be heard and determined in such New York State or federal courts; (iii)
waives, to the fullest possible extent, the defense of an inconvenient forum;
and (iv) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
SECTION 52. Further Assurances. The Seller, the Purchaser and the
Additional Party each agrees to execute and deliver such instruments and take
such further actions as any other party hereto may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 53. Successors and Assigns. The respective rights and obligations
of the Seller and the Additional Party under this Agreement shall not be
assigned by the Seller or the Additional Party, as applicable, without the prior
written consent of the Purchaser, except that any person into which the Seller
or the Additional Party may be merged or consolidated, or any person resulting
from any merger, conversion or consolidation to which the Seller or the
Additional Party is a party, or any person succeeding to all or substantially
all of the business of the Seller or the Additional Party, shall be the
successor to the Seller or the Additional Party, as applicable, hereunder. In
connection with its transfer of the Mortgage Loans to the Trust as contemplated
by the recitals hereto, DLJCMC is expressly authorized to assign its rights and
obligations under this Agreement, in whole or in part, to the Trustee for the
benefit of the registered holders and beneficial owners of the Certificates. To
the extent of any such assignment, the Trustee, for the benefit of the
registered holders and beneficial owners of the Certificates, shall be the
Purchaser hereunder. In connection with the transfer of any Mortgage Loan by the
Trust as contemplated by the terms of the Pooling and Servicing Agreement, the
Trustee, for the benefit of the registered holders and beneficial owners of the
Certificates, is expressly authorized to assign its rights and obligations under
this Agreement, in whole or in part, to the transferee of such Mortgage Loan. To
the extent of any such assignment, such transferee shall be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller and the Purchaser, and their
respective successors and permitted assigns.
SECTION 54. Information. The Seller and the Additional Party shall each
provide the Purchaser with such information about itself, the Mortgage Loans and
the underwriting and servicing procedures applicable to the Mortgage Loans as is
(i) customary in commercial mortgage loan securitization transactions, (ii)
required by a Rating Agency or a governmental agency or body or (iii) reasonably
requested by the Purchaser for use in a public or private disclosure document.
SECTION 55. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18
13
<PAGE>
shall be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including, without limitation, each
of the representations and warranties set forth in Exhibit C hereto and each of
the capitalized terms used herein but defined in the Pooling and Servicing
Agreement, shall be interpreted in a manner consistent with this Section 18. In
addition, if there exists with respect to any Cross-Collateralized Group only
one original of any document referred to in the definition of "Mortgage File" in
the Pooling and Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
SECTION 3. Entire Agreement. Except as otherwise expressly contemplated
hereby, this Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with
respect to such matters.
[SIGNATURE PAGE FOLLOWS]
14
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By:
--------------------------------------
Name:
Title:
PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
By:
--------------------------------------
Name:
Title:
DLJ COMMERCIAL MORTGAGE CORP.
By:
--------------------------------------
Name:
Title:
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-CKP1
ORIGINAL
PRINCIPAL
# PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE
--- ------------- ------- ---- ----- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
2 Valencia Marketplace, Power 25420-25710 The Old Road Valencia CA 91381 51,980,517
Center
3 HERCULES PLAZA (1) 1313 North Market Street Wilmington DE 19801 51,010,324
8 Gateway at Randolph Apartments 44 Center Grove Road Randolph NJ 07869 28,000,000
Township
10 Palm Plaza Shopping Center 26479 Ynez Road Temecula CA 92591 25,762,500
17 One Bulfinch Place One Bulfinch Place Boston MA 02114 14,500,000
18 Sandhurst Apartments 30582 Sandhurst Drive Roseville MI 48066 14,000,000
20 Saddle Brook Apartments 49 Finnigan Avenue Saddle Brook NJ 07663 13,000,000
Township
23 RADISSON INN HARBOURWALK (2B) 223 Gaslight Circle Racine WI 53403 6,900,000
24 RADISSON SUITE HOTEL (2B) 404 W. St. Germain St. Cloud MN 56301 5,350,000
30 Glenridge Apartments 4770 Nightingale Drive Colorado CO 80918 10,500,000
Springs
32 Windmill Apartments 4165 Lacy Lane Colorado CO 80916 10,453,000
Springs
33 Kent Hill Plaza 25610-26004 104th Avenue, SE Kent WA 98031 10,300,000
34 Cheyenne Crest Apartments 4008 Westmeadow Drive Colorado CO 80906 10,237,000
Springs
35 Big Kmart - Midwest City 5701 East Reno Avenue Midwest City OK 73110 10,000,000
37 Big Kmart - Edmond 2501 South Broadway Edmond OK 73013 9,790,000
40 Big Kmart - Chicago 1710 North Kostner Avenue Chicago IL 60639 9,540,000
43 DoubleTree Hotel 1230 Congress Street Portland ME 04102 9,200,000
48 Candlewood Hotel - Sacramento 555 Howe Avenue Sacramento CA 95825 8,415,000
50 North Reading Plaza 72 Main Street North Reading MA 01867 7,400,000
51 Cypress Springs Apartments 210 Welcome Way Fern Park FL 32730 7,300,000
57 Standard Dairy Apartments 2808 Northeast Martin Luther Portland OR 97212 6,260,000
King Jr. Boulevard
58 Edward's Office Portfolio 6,000,000
58a 200 Newport Center Drive 200 Newport Center Drive Newport Beach CA 92660
58b 359 San Miguel Drive 359 San Miguel Drive Newport Beach CA 92660
58c 363 San Miguel Drive 363 San Miguel Drive Newport Beach CA 92660
62 Granite Retail Portfolio 5,640,000
62a Campbell Park Shopping Center 3443 W. Campbell Road (Big Garland TX 75042
Spring Road)
62b Frankford Crest Shopping Center 6911 Frankford Road Dallas TX 75225
62c Midway Village Shopping Center 19021 Midway Road Dallas TX 75287
62d Campbell Square Shopping Center 955 East Campbell Road Richardson TX 75081
63 Walnut Creek Apartments 11411 Green Plaza Drive Houston TX 77038 5,600,000
66 Indian Run Village 1 Lenape Way Honey Brook PA 19344 5,500,000
73 6329 Glenwood Office Building 6329 Glenwood Avenue Overland Park KS 66202 5,000,000
81 The Shops at Fair Lakes 12701-12735 Shoppes Lane Fairfax VA 22033 4,200,000
84 Florida Computer Center 7841-7919 Pines Boulevard Pembroke Pines FL 33024 4,100,000
93 Augusta Plaza Shopping Center 48-54 Western Avenue Augusta ME 04330 3,790,000
96 West Marietta Retail Center Dallas Highway & Villa Rica Marietta GA 30064 3,650,000
Road
97 Regency Centre Office Complex 8202 Clearvista Parkway Indianapolis IN 46256 3,500,000
104 Bryn Mawr Suites Apartments 5100 Lebanon Avenue Philadelphia PA 19131 3,150,000
114 Warehouse X/Lock-It Lockers 1560 Frazee Road San Diego CA 92108 2,800,000
115 Lazy Acres Estates 5510 Stettin Drive Wausau WI 54401 2,755,000
120 Northway Plaza Shopping Center 5300 - 5348 Dixie Highway Waterford MI 48329 2,675,000
Township
124 Middlefield Market Square 15401-15439 West High Street Middlefield OH 44062 2,550,000
Shopping Center
127 The Meadows Apartments 341 Stelton Road Xenia OH 45385 2,450,000
129 Colony Square Apartments 3020 Colquitt Road Shreveport LA 71118 2,400,000
136 1025 East Maple Office Building 1025 East Maple Road Birmingham MI 48009 2,175,000
137 Jaffe Eye Office Building 18999 Biscayne Boulevard Aventura FL 33180 2,150,000
139 North Mall 68-100 Old Riverhead Road Westhampton NY 11978 2,150,000
Beach
151 Richfield Court Apartments 3281 Richfield Road Flint MI 48506 1,845,000
156 Warehouse II/Lock-It Lockers 3636 East Washington Street Phoenix AZ 85034 1,809,000
159 Gaithersburg Shopping Center 841-861 Russell Avenue Gaithersburg MD 20879 1,800,000
182 Lockheed Martin Building 2717 Airport Drive Harlingen TX 78550 1,370,000
183 Renton Highlands Center 1190 Sunset Boulevard NE Renton WA 98056 1,360,000
186 Pinewood Village Apartments 1258 Sunset Boulevard Jesup GA 31545 1,257,500
196 STONEY CREEK APARTMENTS (4) 410 East Hinckley Avenue Ridley Park PA 19078 1,100,000
Borough
199 Warehouse I/Lock-It Lockers 1135 West Broadway Road Tempe AZ 85282 1,045,000
207 Northway Court Shopping Center 1501 Northway Drive St. Cloud MN 56303 875,000
209 Warehouse IV/Lock-It Lockers 2825 North 1st Avenue Tucson AZ 85719 855,000
210 Warehouse IX/Lock-It Lockers 4115 East Speedway Boulevard Tucson AZ 85712 820,000
<CAPTION>
ORIGINAL REMAINING
TERM TO TERM TO ORIGINATION REMAINING INTEREST
CUT-OFF-DATE MORTGAGE MATURITY MATURITY AMORTIZED AMORTIZATION ONLY
PRINCIPAL MONTHLY INTEREST MONTHS MONTHS TERM TERM PERIOD
# BALANCE(4) PAYMENT(5) RATE (6) (6) (MONTHS) (MONTHS) (MONTHS) ARD(7)
--- ------------ --------- -------- -------- -------- ----------- ------------ -------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 51,787,099 361,534.76 7.240% 156 152 336 332 0 7/1/2013
3 50,909,381 390,426.55 6.810% 152 151 152 151 0
8 27,870,175 216,479.64 8.020% 120 115 300 295 0
10 25,476,217 181,371.61 7.570% 120 103 360 343 0 6/1/2009
17 14,383,000 112,212.51 8.380% 120 116 334 334 30 7/1/2010
18 13,971,656 102,922.30 8.020% 120 116 360 356 0
20 12,939,724 100,508.41 8.020% 120 115 300 295 0
23 6,888,821 56,774.80 8.760% 120 118 300 298 0
24 5,341,332 44,021.04 8.760% 120 118 300 298 0
30 10,488,631 78,072.50 8.140% 120 118 360 358 0
32 10,437,167 77,723.03 8.140% 120 117 360 357 0
33 10,287,425 79,052.14 8.480% 120 118 360 358 0
34 10,221,494 76,116.97 8.140% 120 117 360 357 0
35 9,984,394 73,655.50 8.040% 120 117 360 357 0 8/1/2010
37 9,770,974 72,861.89 8.150% 120 116 360 356 0 7/1/2010
40 9,521,460 71,001.27 8.150% 120 116 360 356 0 7/1/2010
43 9,154,171 73,560.83 8.416% 120 115 300 295 0
48 8,401,451 69,412.22 8.790% 120 118 300 298 0
50 7,380,723 55,126.22 8.160% 120 115 360 355 0 6/1/2010
51 7,300,000 56,676.05 8.430% 120 114 336 336 24 5/1/2010
57 6,250,949 48,367.53 8.270% 120 118 324 322 0
58 5,991,636 45,752.65 8.410% 120 117 360 357 0 8/1/10
58a
58b
58c
62 5,633,625 41,305.71 7.980% 120 118 360 358 0
62a
62b
62c
62d
63 5,591,998 42,367.32 8.090% 120 118 330 328 0
66 5,500,000 42,329.23 8.510% 120 116 360 360 12
73 4,988,040 38,268.64 8.450% 120 115 360 355 0 6/1/2010
81 4,187,640 31,612.27 8.270% 120 114 360 354 0 5/1/2010
84 4,089,866 31,061.72 8.340% 120 115 360 355 0 6/1/2010
93 3,769,547 28,322.18 8.190% 120 110 360 350 0 1/1/2010
96 3,631,507 29,145.23 8.400% 120 114 300 294 0 5/1/2010
97 3,495,482 27,284.92 8.650% 120 117 360 357 0
104 3,141,216 22,938.15 7.920% 120 115 360 355 0 6/1/2010
114 2,793,488 23,001.00 8.740% 120 117 300 297 0
115 2,755,000 21,047.04 8.430% 120 116 360 360 12
120 2,659,332 22,977.79 8.360% 120 116 240 236 0
124 2,543,014 19,607.29 8.500% 120 114 360 354 0
127 2,447,454 18,474.97 8.290% 120 118 360 358 0
129 2,396,728 20,797.39 8.480% 240 239 240 239 0
136 2,166,473 17,985.18 8.820% 240 235 300 295 0
137 2,150,000 16,655.95 8.300% 120 115 324 324 36 6/1/2010
139 2,140,954 17,297.90 8.490% 120 115 300 295 0
151 1,833,914 13,731.38 8.150% 120 109 360 349 0 12/1/2009
156 1,805,034 9.000% 120 117 300 297 0
15,181.06
159 1,795,202 13,308.29 8.080% 120 115 360 355 0 6/1/2010
182 1,368,517 10,186.60 8.140% 120 118 360 358 0
183 1,357,940 11,487.67 9.080% 120 118 300 298 0
186 1,252,888 9,411.84 8.210% 120 113 360 353 0 4/1/2010
196 1,098,780 8,109.79 8.050% 120 118 360 358 0
199 1,042,570 8,584.30 8.740% 120 117 300 297 0
207 874,174 6,808.77 8.630% 120 118 360 358 0
209 853,012 7,023.52 8.740% 120 117 300 297 0
210 818,093 6,736.01 8.740% 120 117 300 297 0
<CAPTION>
INTEREST
FEE SIMPLE CALCULATION SERVICING
MORTGAGE (30/360/ AND
LOAN ACUTAL/360 TRUSTEE
# DEFEASANCE(8) DEFEASANCE PERIOD (9) LEASEHOLD SELLER ACTUAL/365) FEES
--- ------------- --------------------- --------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
2 Yes L (3.83), D (8.58), O Fee PMCF 30/360 0.059212%
(0.58)
3 No N/A Leasehold PMCF 30/360 0.051700%
8 Yes L (3), D (6.58), O (0.42) Fee PMCF Actual/360 0.071700%
10 Yes L (3.42), D (6), O (0.58) Fee PMCF Actual/360 0.051700%
17 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
18 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.101700%
20 Yes L (3), D (6.58), O (0.42) Fee PMCF Actual/360 0.071700%
23 Yes L (2.25), D (7.42), O Fee PMCF Actual/360 0.051700%
(0.33)
24 Yes L (2.25), D (7.42), O Fee PMCF Actual/360 0.051700%
(0.33)
30 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
32 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
33 Yes L (4), D (5.67), O (0.33) Fee PMCF 30/360 0.076700%
34 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
35 Yes L (2.33), D (7.08), O Fee PMCF Actual/360 0.051700%
(0.58)
37 Yes L (2.42), D (7), O (0.58) Fee PMCF Actual/360 0.051700%
40 Yes L (2.42), D (7), O (0.58) Fee PMCF Actual/360 0.051700%
43 Yes L (4), D (5.67), O (0.33) Fee PMCF 30/360 0.051700%
48 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.101700%
50 Yes L (4.5), D (5.17), O Fee PMCF Actual/360 0.101700%
(0.33)
51 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
57 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
58 Yes L (4), D (5.67), O (0.33) PMCF Actual/360 0.101700%
58a Fee PMCF
58b Fee PMCF
58c Fee PMCF
62 Yes L (4), D (5.67), O (0.33) PMCF Actual/360 0.051700%
62a Fee PMCF
62b Fee PMCF
62c Fee PMCF
62d Fee PMCF
63 Yes L (2.25), D (7.17), O Fee PMCF Actual/360 0.051700%
(0.58)
66 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
73 Yes L (4), D (5.58), O (0.42) Fee PMCF Actual/360 0.051700%
81 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
84 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
93 Yes L (4.92), D (4.75), O Fee PMCF Actual/360 0.051700%
(0.33)
96 Yes L (4.58), D (5.08), O Fee PMCF Actual/360 0.051700%
(0.33)
97 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
104 No N/A Fee PMCF Actual/360 0.101700%
114 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
115 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
120 Yes L (3), D (6.67), O (0.33) Fee PMCF Actual/360 0.101700%
124 Yes L (3.92), D (5.75), O Fee PMCF Actual/360 0.101700%
(0.33)
127 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
129 No N/A Fee PMCF Actual/360 0.051700%
136 Yes L (4), D (15.67), O Fee PMCF Actual/360 0.101700%
(0.33)
137 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.051700%
139 Yes L (4.5), D (4.92), O Fee PMCF Actual/360 0.051700%
(0.58)
151 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
156 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
159 Yes L (2.5), D (7.17), O Fee PMCF Actual/360 0.101700%
(0.33)
182 Yes L (4), D (5.42), O (0.58) Leasehold PMCF Actual/360 0.051700%
183 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.101700%
186 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.051700%
196 Yes L (4), D (5.42), O (0.58) Fee PMCF Actual/360 0.101700%
199 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
207 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
209 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
210 Yes L (4), D (5.67), O (0.33) Fee PMCF Actual/360 0.051700%
(1) THE UNDERLYING MORTGAGE LOAN SECURED BY HERCULES PLAZA FOLLOWS THE FOLLOWING AMORTIZATION SCHEDULE:
PAYMENTS 1-92 ARE BASED ON A 239-MONTH AMORTIZATION OF PRINCIPAL
PAYMENTS 93-152 ARE BASED ON A 60-MONTH AMORTIZATION OF PRINCIPAL
(2B) THE UNDERLYING MORTGAGE LOANS SECURED BY RADISSON INN HARBOURWALK AND RADISSON SUITE HOTEL ARE CROSS-COLLATERALIZED AND
CROSS-DEFAULTED, RESPECTIVELY.
(4) ASSUMES A CUT-OFF DATE OF NOVEMBER 1, 2000.
(5) IN THE CASE OF LOANS WITH INTEREST ONLY PERIODS, THE MONTHLY PAYMENT PRESENTED HEREIN REFLECTS THE AMOUNT DUE DURING THE
RESPECTIVE AMORTIZATION TERMS.
(6) IN THE CASE OF THE ARD LOANS, THE ANTICIPATED REPAYMENT DATE IS ASSUMED TO BE THE MATURITY DATE FOR THE PURPOSES OF THE
INDICATED COLUMN.
(7) ANTICIPATED REPAYMENT DATE.
(8) "YES" MEANS THAT DEFEASANCE IS PERMITTED NOTWITHSTANDING THE LOCKOUT PERIOD.
(9) PREPAYMENT PROVISION AS OF ORIGINATION:
L (X) = LOCKOUT FOR X YEARS
D (X) = DEFEASANCE FOR X YEARS
YM A% (X) = GREATER OF YIELD MAINTENANCE PREMIUM AND A% PREPAYMENT FOR X
YEARS O (X) = PREPAYABLE AT PAR FOR X YEARS
A1-A3
</TABLE>
<PAGE>
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and perform under
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
<PAGE>
be likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of the
assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(n) The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
(o) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Seller are pending or contemplated.
(p) The principal place of business and chief executive office of the
Seller is located in New Jersey.
B-1-2
<PAGE>
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing Date:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(q) The execution and delivery by the Purchaser of this Agreement, and the
performance and compliance by the Purchaser with the terms of this Agreement
will not: (i) violate the Purchaser's organizational documents; or (ii)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Purchaser is a party or by which it
is bound or which is applicable to it or any of its assets, which default or
breach, in the Purchaser's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Purchaser to perform
its obligations under this Agreement or the financial condition of the
Purchaser.
(r) The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(s) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(t) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(u) There are no actions, suits or proceedings pending or, to the best of
the Purchaser's knowledge, threatened against the Purchaser which, if determined
adversely to the Purchaser, would prohibit the Purchaser from entering into this
Agreement or, in the Purchaser's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Purchaser to
perform its obligations hereunder or the financial condition of the Purchaser.
(v) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been
B-2-1
<PAGE>
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
B-2-2
<PAGE>
EXHIBIT B-3
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ADDITIONAL PARTY
The Additional Party hereby represents and warrants that, as of the Closing
Date:
(b) The Additional Party is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(w) The execution and delivery by the Additional Party of this Agreement,
and the performance and compliance by the Additional Party with the terms of
this Agreement, will not: (i) violate the Additional Party's organizational
documents; or (ii) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach of,
any indenture, agreement or other instrument to which the Additional Party is a
party or by which it is bound or which is applicable to it or any of its assets,
which default or breach, in the Additional Party's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Additional Party to perform its obligations under this Agreement or the
financial condition of the Additional Party.
(x) The Additional Party has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(y) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Additional Party, enforceable against the Additional Party in accordance
with the terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (ii) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law.
(z) The Additional Party is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms
hereof will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in the Additional
Party's good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Additional Party to perform its obligations
under this Agreement or the financial condition of the Additional Party.
(aa) There are no actions, suits or proceedings pending or, to the best of
the Additional Party's knowledge, threatened against the Additional Party which,
if determined adversely to the Additional Party, would prohibit the Additional
Party from entering into this Agreement or, in the Additional Party's good faith
and reasonable judgment, would be likely to affect materially and adversely
either the ability of the Additional Party to perform its obligations hereunder
or the financial condition of the Additional Party.
(bb) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Additional Party of the transactions
contemplated herein, except for those consents, approvals,
B-3-1
<PAGE>
authorizations and orders that previously have been obtained and those filings
and registrations that previously have been completed.
(cc) No proceedings looking toward liquidation, dissolution or bankruptcy
of the Additional Party are pending or contemplated.
B-3-2
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE OTHERWISE
EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE SELLER REGARDING
THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT AS
EXPRESSLY SET FORTH HEREIN).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and
Servicing Agreement) and correct in all material respects as of the date of
this Agreement and as of the respective Due Dates for the Mortgage Loans in
November 2000.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage Loan to or at the direction of the Purchaser
free and clear of any and all pledges, liens, charges, security interests,
participation interests and/or other interests and encumbrances. Subject to the
completion of all missing information (including, without limitation, the names
of assignees and endorsees and missing recording information) in all instruments
of transfer or assignment and endorsements, and the completion of all recording
and filing contemplated hereby and by the Pooling and Servicing Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Due Date for such Mortgage
Loan in November 2000 without giving effect to any applicable grace period, nor
was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in November 2000.
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, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and/or are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or a "marked-up" commitment), none of which materially
interferes with the security intended to be provided by such
C-1
<PAGE>
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or "marked-up" commitment), none of
which materially interferes with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (d) other matters to which like properties are
commonly subject, none of which materially interferes with the security intended
to be provided by such Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (e) the rights
of tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property which the Seller did not require to be
subordinated to the lien of such Mortgage and which do not materially interfere
with the security intended to be provided by such Mortgage, the current
principal use of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service the related
Mortgage Loan, and (f) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Cross-Collateralized Group (the foregoing items (a) through (f) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name of the assignee and any related recording
information which is not yet available to the Seller) and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in,
subject to applicable law, the property, rights and interests of the related
Borrower described therein; and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not included
in a Mortgage, executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name of the assignee and any related recording
information which is not yet available to the Seller), and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. If an Assignment of Leases exists with respect to any Mortgage
Loan (whether as part of the related Mortgage or separately), then the related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession to collect the rents.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) the related Mortgaged Property has not
been released from the lien of such Mortgage and (c) the related Borrower has
not been released from its obligations under such Mortgage, in whole or in
material part, in each such event in a manner which would materially interfere
with the benefits of the security intended to be provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth in an engineering report prepared in connection with the
origination of such Mortgage Loan and except as otherwise described on Schedule
C-7, the related Mortgaged Property is, to the Seller's
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<PAGE>
knowledge (after inquiry of its servicer, which servicer may be an affiliate of
the Seller), free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists sufficient to effect the
necessary repairs and maintenance). The Seller has not received notice and has
no knowledge of any proceeding pending for the condemnation of all or any
material portion of the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge (based solely on surveys (if any) and/or the lender's title
policy (or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each Mortgage Loan),
as of the date of the origination of each Mortgage Loan, (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current use of such
Mortgaged Property, and (b) no improvements on adjoining properties 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 lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), 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. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless, in the case of clause (b) below, the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available), (a) access to a public road, and (b) that if a survey was
reviewed or prepared in connection with the origination of the related Mortgage
Loan, the area shown on such survey is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
exceptions set forth in Paragraph 13 below, enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby, including, without limitation,
foreclosure or similar proceedings (as applicable for the jurisdiction where the
related Mortgaged Property is located).
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11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with the Mortgage and applicable law, and (b) no fees
or expenses are payable to such trustee by the Seller, the Depositor or any
transferee thereof except in connection with a trustee's sale after default by
the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12 (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials, lead-based paint
and radon) (a) an environmental site assessment, an environmental site
assessment update or a transaction screen was performed by an independent
third-party environmental consultant with respect to each Mortgaged Property
securing a Mortgage Loan in connection with the origination of such Mortgage
Loan, (b) a report of each such assessment, update or screen, if any (an
"Environmental Report"), has been delivered to the Purchaser, and (c) either:
(i) no such Environmental Report, if any, provides that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related to the
related Borrower was identified as a responsible party for such condition or
circumstance, (B) the related Borrower was required to provide additional
security and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Seller, in its sole discretion, that applicable federal, state
or local governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or circumstance,
(D) such conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (G) the related Borrower or other responsible party
is currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, (H) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions or (I) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had, in the Seller's sole discretion, an
appropriate net worth in light of the environmental matters covered by such
guaranty or indemnity. To the Seller's knowledge, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage for each Mortgage
Loan encumbering the Mortgaged Property requires the related Borrower to comply
with all applicable federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
Loan is the legal, valid
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<PAGE>
and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by (i) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law,
but (subject to the limitations set forth in the foregoing clauses (i) and (ii))
such limitations or unenforceability will not render such loan documents invalid
as a whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the replacement
cost of the improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. With respect to each Mortgage Loan, the related
Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further,
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<PAGE>
that, if the related Borrower holds a leasehold interest in the related
Mortgaged Property, the application of such proceeds will be subject to the
terms of the related Ground Lease (as defined in Paragraph 18 below). In the
case of each Mortgage Loan, the related Mortgaged Property is covered by
comprehensive general liability insurance in an amount at least equal to $1
million.
15. Taxes and Assessments. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there are no
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan that are a lien of priority
equal to or higher than the lien of the related Mortgage and that are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Seller's knowledge, no Borrower under a
Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or based on such other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located (including, without limitation,
when commercially reasonable, a representation of the related Borrower at the
time of origination of the subject Mortgage Loan), the improvements located on
or forming part of each Mortgaged Property securing a Mortgage Loan are in
material compliance with applicable zoning laws and ordinances or constitute a
legal non-conforming use or structure (or, if any such improvement does not so
comply and does not constitute a legal non-conforming use or structure, such
non-compliance and failure does not materially and adversely affect the value of
the related Mortgaged Property as determined by the appraisal performed in
connection with the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from or other agreements with
the ground lessor, a "Ground Lease"), but not by the related fee interest in
such Mortgaged Property or such material portion thereof (the "Fee Interest"),
then:
(c) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the exception of material
changes reflected in written instruments which are a part of the related
Mortgage File;
(dd) The related lessee's leasehold interest in the portion of the related
Mortgaged Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related Mortgage, other
than the related Fee Interest and Permitted Encumbrances;
(ee) The Borrower's interest in such Ground Lease is assignable to, and is
thereafter further assignable by, the Purchaser upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it either
has been obtained or cannot be unreasonably withheld); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been paid;
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<PAGE>
(ff) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease;
(gg) Such Ground Lease requires the lessor thereunder to give written
notice of any default by the lessee to the mortgagee under such Mortgage Loan.
In addition, if required by such Ground Lease, the lessor thereunder has
received notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease. Furthermore, such Ground Lease further provides
that no notice of termination given under such Ground Lease is effective against
the mortgagee under such Mortgage Loan unless a copy has been delivered to such
mortgagee in the manner described in such Ground Lease;
(hh) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(ii) Such Ground Lease either (i) has an original term which extends not
less than ten (10) years beyond the Stated Maturity Date of such Mortgage Loan,
or (ii) has an original term which does not end prior to the 5th anniversary of
the Stated Maturity Date of such Mortgage Loan and has extension options that
are exercisable by the lender upon its taking possession of the Borrower's
leasehold interest and that, if exercised, would cause the term of such Ground
Lease to extend not less than ten (10) years beyond the Stated Maturity Date of
such Mortgage Loan;
(jj) Such Ground Lease requires the lessor to enter into a new lease with a
mortgagee upon termination of such Ground Lease as a result of a rejection of
such Ground Lease in a bankruptcy proceeding involving the related Borrower
unless the mortgagee under such Mortgage Loan fails to cure a default of the
lessee under such Ground Lease following notice thereof from the lessor;
(kk) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to the leasehold
interest will be applied either (i) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee appointed by
it having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the payment of
the outstanding principal balance of the Mortgage Loan together with any accrued
interest thereon;
(ll) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by a prudent commercial mortgage
lender in the lending area where the Mortgaged Property is located at the time
of the origination of such Mortgage Loan; and
(mm) Except as otherwise indicated on Schedule C-18, such Ground Lease may
not be amended or modified without the prior written consent of the mortgagee
under such Mortgage Loan, and any such action without such consent is not
binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2)).
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20. Advancement of Funds. In the case of each Mortgage Loan, neither the
Seller nor, to the Seller's knowledge, any prior holder of such 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 (other
than amounts paid by the tenant as specifically provided under related lease),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the Borrower under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan or the current ability of the
Borrower to pay principal, interest or any other amounts due under such Mortgage
Loan.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To the Seller's knowledge, except as otherwise set forth on Schedule C-23, and
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal 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 that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from, all
applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located, customarily performs in the origination of
comparable mortgage loans, the Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then operated or such
material licenses, permits and franchises have otherwise been issued.
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<PAGE>
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan; provided that the Mortgage Loans that
are Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price and prepayment
consideration in connection therewith; and provided, further, that any Mortgage
Loan may permit the unconditional release of one or more unimproved parcels of
land to which the Seller did not give any material value in underwriting the
Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. Except as described on Schedule C-32, in connection with
the origination of each Mortgage Loan, the Seller inspected, or caused the
inspection of, the related Mortgaged Property.
33. No Material Default. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
34. Due-on-Sale. Subject to exceptions set forth in the related Mortgage,
the Mortgage for each Mortgage Loan contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in the
related Borrower, is directly or indirectly transferred or sold.
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35. Single Purpose Entity. Except as described on Schedule C-35, the
Borrower on each Mortgage Loan with a Cut-off Date Principal Balance of
$15,000,000 or more, was, as of the origination of the Mortgage Loan, a Single
Purpose Entity. For this purpose, a "Single Purpose Entity" shall mean an
entity, other than an individual, whose organizational documents provide
substantially to the effect that it was formed or organized solely for the
purpose of owning and operating one or more of the Mortgaged Properties securing
the Mortgage Loans and prohibit it from engaging in any business unrelated to
such Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any material assets
other than those related to its interest in and operation of such Mortgaged
Property or Properties, or any indebtedness other than as permitted by the
related Mortgage(s) or the other related Mortgage Loan documents, that it has
its own books and records and accounts separate and apart from any other person,
that it holds itself out as a legal entity (separate and apart from any other
person), that it will not guarantee or assume the debts of any other person,
that it will not commingle assets with affiliates, and that it will not transact
business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
37. Tax Parcels. Except as described on Schedule C-37 of this Agreement,
each Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related Title Policy or in certain instances
an application has been made to the applicable governing authority for creation
of separate tax lots which shall be effective for the next tax year.
38. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
39. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then (a) the
security agreements, financing statements or other instruments, if any, related
to the Mortgage Loan secured by such Mortgaged Property establish and create a
valid security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related information which is not yet available to the Seller)
executed and delivered in favor of the Trustee constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its stated maturity date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
C-10
<PAGE>
42. Servicing Rights. Except as set forth on Schedule C-42 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
43. Recourse. Except as described on Schedule C-43, the related Mortgage
Loan Documents contain standard provisions providing for recourse against the
related Borrower, a principal of such Borrower or an entity controlled by a
principal of such Borrower for damages sustained in connection with the
Borrower's fraud, material misrepresentation or misappropriation of any tenant
security deposits, rent, insurance proceeds or condemnation proceeds. Except in
the case of the Mortgage Loan secured by the Mortgaged Property identified on
the Mortgage Loan Schedule as Hercules Plaza, the related Mortgage Loan
Documents contain provisions pursuant to which the related Borrower, a principal
of such Borrower or an entity controlled by a principal of such Borrower has
agreed to indemnify the mortgagee for damages resulting from violations of any
applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Mortgage Loan
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any material improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the Closing Date, have been complied with
in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and/or financial statements of the related Borrower,
and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related Mortgage
or Mortgage Note provides a grace period for delinquent Monthly Payments no
longer than 15 days from the applicable Due Date.
49. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
C-11
<PAGE>
CONDITION OF PROPERTY; CONDEMNATION
Meadows Apartments - A fire at the Mortgaged Property on August 25, 2000
caused damage to one of the buildings. Four (4) of the 88 units at the Mortgaged
Property are currently vacant as a result of the casualty. Seller has been
informed that the related Borrower (a) has obtained bids for the necessary
repairs, (b) has made application for, and is awaiting issuance by the City of
Xenia of, necessary building permits, and (c) expects construction to be
completed by the end of November, 2000.
<PAGE>
SCHEDULE C-12
MORTGAGED PROPERTIES AS TO WHICH NO ENVIRONMENTAL TESTING
WAS CONDUCTED IN CONNECTION WITH THE ORIGINATION
OF THE RELATED MORTGAGE LOANS OTHER THAN WITH RESPECT TO
ASBESTOS-CONTAINING MATERIALS, LEAD-BASED PAINT AND RADON
None
<PAGE>
SCHEDULE C-18
LEASEHOLD ESTATE ONLY
Hercules Plaza - With respect to Paragraph 18 (k), the Ground Lease does
not expressly state that "any such action without such consent is not binding on
such mortgagee, its successors and assigns."
C-18-1
<PAGE>
SCHEDULE C-23
OTHER MORTGAGE LIEN EXCEPTIONS
Hercules Plaza - The Mortgaged Property is
encumbered by a second mortgage in favor of Brandywine Gateway Corporation,
securing a promissory
note in the original principal balance of $12,160,000.
C-23-1
<PAGE>
SCHEDULE C-28
RELEASES OF MORTGAGED PROPERTIES
North Reading Plaza - Paragraph 4.34 of the related Mortgage grants the
related Borrower the right to obtain a partial release of a designated portion
of the Mortgaged Property, upon the satisfaction of specified conditions.
C-28-1
<PAGE>
SCHEDULE C-32
INSPECTION EXCEPTIONS
Hercules Plaza - The Seller performed an inspection in connection with its
acquisition of this Mortgage Loan.
C-32-1
<PAGE>
SCHEDULE C-35
SINGLE PURPOSE ENTITY
Hercules Plaza - While the Borrower operated as a single purpose entity
from the origination of the Loan, and provided a certificate so attesting, its
organizational documents were modified to encompass all of the referenced
"separateness" covenants, thereby establishing Borrower as a Single Purpose
Entity, only as of Seller's acquisition of the Mortgage Loan. However, each of
the Borrower's general partners is also a Single Purpose Entity with an
independent director, and the Borrower's counsel has delivered a
non-consolidation opinion to Seller.
C-35-1
<PAGE>
SCHEDULE C-37
TAX PARCEL EXCEPTIONS
None
C-37-1
<PAGE>
SCHEDULE C-42
MORTGAGE LOANS SUBJECT
TO THE SERVICING
RIGHTS OF THIRD-PARTIES
The Seller has retained the right to service all of the Mortgage Loans
through the Seller's affiliate, PMLS Limited Partnership ("PMLS"), pursuant to
the terms of that certain Subservicing Agreement dated as of November 1, 2000 by
and between PMLS and Key Corporate Capital, Inc. In addition, for each of the
Mortgage Loans identified on the attached Mortgage Loan Schedule as having
Sub-subservicing, a sub-subservicer (generally, the mortgage broker associated
with the related Mortgage Loan) has been granted the right to receive certain
payments in consideration for the completion of certain loan servicing
activities.
C-42-1
<PAGE>
SCHEDULE C-43
RECOURSE
Hercules Plaza - The related Mortgage Loan Documents provide that this
Mortgage Loan is non-recourse, without exceptions, and do not include an
environmental indemnity. However, the property is triple-net leased to Hercules,
Inc., which is responsible for all repairs and maintenance of the Property.
C-43-1
<PAGE>
EXHIBIT D-1A
FORM OF CERTIFICATE OF THE SECRETARY
OF THE SELLER
SECRETARY'S CERTIFICATE
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
The undersigned, being duly elected and incumbent Secretary of PRUDENTIAL
MORTGAGE CAPITAL FUNDING LLC, a Delaware limited liability company (the
"Company"), certifies that, as such, I have access to the corporate records of
the Company and do hereby certify as follows:
1. The attached Exhibit "A" is a true copy of a resolutions evidencing
authorization and approval the Company's entering into the Mortgage Loan
Purchase Agreement dated as of October 27, 2000 between the Company as Seller,
Prudential Mortgage Capital Company, LLC as an Additional Party, and DLJ
Commercial Mortgage Corp., as Purchaser. Said resolutions, duly adopted by
Consent of the Company's sole Managing Member effective as of November 6, 2000,
remains in full force and effect and has not been amended, revoked or rescinded.
2. The attached Exhibit "B" is a true and correct copy of the Company's
By-Laws duly adopted by the Company's sole Managing Member in effect as of the
date hereof.
3. The attached Exhibit "C" is a true and correct copy of the Company's
Certificate of Formation dated June 17, 1997. No amendment, revision, supplement
or other document affecting the Certificate of Formation has been approved by
the Managing Member of the Company or filed in the office of the Secretary of
State of the State of Delaware since June 17, 1997.
4. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court, including in
the state of New Jersey, or by or before any other governmental agency or
instrumentality which would materially and adversely affect the validity of the
Mortgage Loans or the ability of the Company to carry out the transactions
contemplated by the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
5. To my knowledge, the Company is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state
(including the state of New Jersey), municipal or governmental agency, which
default might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
IN WITNESS WHEREOF, I hereunto affixed by official signature and corporate
seal of the Company this ____ day of November, 2000.
[SEAL]
John C. Kelly
Secretary
D-1A-2
<PAGE>
EXHIBIT D-1B
FORM OF CERTIFICATE OF THE
SECRETARY OF THE ADDITIONAL PARTY
SECRETARY'S CERTIFICATE
PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
The undersigned, being duly elected and incumbent Secretary of PRUDENTIAL
MORTGAGE CAPITAL COMPANY LLC, a Delaware limited liability company (the
"Company"), certifies that, as such, I have access to the corporate records of
the Company and do hereby certify as follows:
6. The attached Exhibit "A" is a true copy of a resolutions evidencing
authorization and approval the Company's entering into the Mortgage Loan
Purchase Agreement dated as of October 27, 2000 between the Company as an
Additional Party, Prudential Mortgage Capital Funding, LLC as Seller, and DLJ
Commercial Mortgage Corp., as Purchaser. Said resolution, duly adopted by
Consent of the Company's sole Managing Member effective as of November 6, 2000,
remains in full force and effect and has not been amended, revoked or rescinded.
7. The attached Exhibit "B" is a true and correct copy of the Company's
By-Laws duly adopted by the Company's sole Managing Member.
8. The attached Exhibit "C" is a true and correct copy of the Company's
Certificate of Formation dated June 17, 1997. No amendment, revision, supplement
or other document affecting the Certificate of Formation has been approved by
the Managing Member of the company or filed in the office of the Secretary of
State of the State of Delaware since June 17, 1997.
9. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court, including in
the state of New Jersey, or by or before any other governmental agency or
instrumentality which would materially and adversely affect the validity of the
Mortgage Loans or the ability of the Company to carry out the transactions
contemplated by the Mortgage Loan Purchase Agreement or the Indemnification
Agreement defined therein.
10. To my knowledge, the Company is not in default with respect to any
order or decree of any court or any order, regulation or demand of any federal,
state (including the state of New Jersey), municipal or governmental agency,
which default might have consequences that would materially and adversely affect
the condition (financial or other) or operations of the Company or its
properties or might have consequences that would materially and adversely affect
its performance under the Mortgage Loan Purchase Agreement or the
Indemnification Agreement defined therein.
IN WITNESS WHEREOF, I hereunto affixed by official signature and corporate
seal of the Company this ____ day of November, 2000.
[SEAL]
John C. Kelly
Secretary
D-1B-2
<PAGE>
EXHIBIT D-2A
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
In connection with the execution and delivery by
Prudential Mortgage Capital Funding, LLC ("PMCF") of, and the consummation of
the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement (the
"Mortgage Loan Purchase Agreement"), dated as of October 27, 2000, between DLJ
Commercial Mortgage Corp., as purchaser, PMCF, as seller, and Prudential
Mortgage Capital Company, LLC, as additional party, and the corresponding
Indemnification Agreement referred to in the Mortgage Loan Purchase Agreement
(the "Indemnification Agreement"; and, together with the Mortgage Loan Purchase
Agreement, the "Agreements") the undersigned hereby certifies that (i) the
representations and warranties of PMCF in the Agreements are true and correct in
all material respects at and as of the date hereof (or, in the case of any
particular representation and warranty set forth in Exhibit C to the Mortgage
Loan Purchase Agreement, as of such other date specifically set forth in such
representation and warranty) with the same effect as if made on the date hereof
(or, in the case of any particular representation and warranty set forth in
Exhibit C to the Mortgage Loan Purchase Agreement, on such other date
specifically set forth in such representation and warranty), and (ii) PMCF has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Agreements to be performed or
satisfied at or prior to the date hereof. Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement.
Certified this __ day of November 2000.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By:
--------------------------------------
Name:
Title:
D-2A-1
<PAGE>
EXHIBIT D-2B
FORM OF CERTIFICATE OF THE ADDITIONAL PARTY
CERTIFICATE OF PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
In connection with the execution and delivery by
Prudential Mortgage Capital Company, LLC ("PMCC") of, and the consummation of
the various
transactions contemplated by, that certain Mortgage Loan Purchase Agreement (the
"Agreement"), dated as of October 27, 2000, between DLJ Commercial Mortgage
Corp., as purchaser, Prudential Mortgage Capital Funding, LLC, as seller, and
PMCC, as additional party, and the corresponding Indemnification Agreement
referred to in the Mortgage Loan Purchase Agreement (the "Indemnification
Agreement; and, together with the Mortgage Loan Purchase Agreement, the
"Agreements"), the undersigned hereby certifies that (i) the representations and
warranties of PMCC in the Agreements are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) PMCC has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part required under the
Agreements to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Mortgage Loan Purchase Agreement.
Certified this __ day of November 2000.
PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
By:
------------------------------------------
Name:
Title:
D-2B-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION OF JOHN KELLY, ESQ., ON BEHALF OF PMCF,
PURSUANT TO SECTION 7(IX)
November 7, 2000
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of October 27,
2000 (the "Mortgage Loan Purchase Agreement") by and between DLJ
Commercial Mortgage Corp., Prudential Mortgage Capital Funding,
LLC ("PMCF") and Prudential Mortgage Capital Company, LLC
("PMCC")
Ladies and Gentlemen:
I am secretary and counsel to Prudential Mortgage Capital Funding, LLC, a
Delaware limited liability company (the "Company"), and, in such capacity, I am
familiar with the affairs of the Company.
I am providing this opinion in connection with the sale by the Company to
the Depositor of certain mortgage loans pursuant to the terms of the Mortgage
Loan Purchase Agreement. This opinion is furnished to you pursuant to Section 7
(ix) of the Mortgage Loan Purchase Agreement. Terms used herein, but not
otherwise defined herein, shall have the meanings ascribed to them in the
Mortgage Loan Purchase Agreement.
I have examined copies of the Mortgage Loan Purchase Agreement, the
Certificate of Formation and the Operating Agreement of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures (other
than with respect to the Company), the authenticity of all documents submitted
to me as originals and the conformity to original documents of copies of
documents supplied to me. As to certain matters of fact relevant to the opinions
hereinafter expressed, I have relied solely upon statements and certificates of
the officers of the Company and others. I have also assumed (other than with
respect to the Company) that all documents, agreements and instruments have been
duly authorized, executed and delivered by all parties thereto, that all such
parties had the power and legal right to execute and deliver all such documents,
agreements and instruments, and that such documents, agreements and instruments
are valid, binding and enforceable obligations of such parties.
D-3A-1
<PAGE>
I am admitted to the Bar of the State of California, and I express no
opinion as to any laws other than the laws of the United States, the State of
California and the Limited Liability Company Act of the State of Delaware.
Based on the foregoing, I am of the opinion that:
1. The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
power and authority to own its assets and conduct its business, to execute,
deliver and perform the Mortgage Loan Purchase Agreement and the Indemnification
Agreement (collectively herein, the "Agreements") and all the transactions
contemplated thereby, including but not limited to, the power and authority to
sell, assign and transfer the Mortgage Loans in accordance with the Mortgage
Loan Purchase Agreement, and the Company has taken all necessary action to
authorize the execution, delivery and performance of the Agreements by it, and
the Agreements have been duly authorized, executed and delivered by it.
2. The execution and delivery of the Agreements by the Company and the
performance of its obligations under the Agreements will not (a) conflict with
any provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Company's organizational documents
or, (b) to my knowledge, conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of any agreement or
instrument to which the Company is a party or by which it is bound, or any order
or decree applicable to the Company, or result in the creation or imposition of
any lien on any of the Company's assets or property, in each case which would
materially and adversely affect the ability of the Company to carry out the
transactions contemplated by the Agreements.
3. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened in writing against the Company in any court or by or
before any other governmental agency or instrumentality which would materially
and adversely affect the validity of the Mortgage Loans or the ability of the
Company to carry out the transactions contemplated by the Agreements.
4. To my knowledge, the Company 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 governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Company or its properties or might have consequences that
would materially and adversely affect its performance under the Agreements.
5. To my knowledge, no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Company or compliance by the Company with the Agreements or
the consummation of the transactions contemplated by the Agreements, other than
those which have been obtained by the Company.
D-3A-2
<PAGE>
This opinion is furnished solely for the benefit of the addressees hereof
in connection with the transaction referred to herein. This letter may not be
relied upon, used, quoted, circulated or otherwise referred to by any other
person or for any other purpose, except as part of the closing set of documents
disseminated to parties to the transaction, without my prior written approval.
This opinion is being given as of the date hereof and I express no opinion as to
events or conditions subsequent to such date.
Very truly yours,
John C. Kelly
D-3A-3
<PAGE>
EXHIBIT D-3B
FORM OF OPINION OF JOHN KELLY, ESQ., ON BEHALF OF PMCC,
PURSUANT TO SECTION 7(IX)
November 7, 2000
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of October 27,
2000 (the "Mortgage Loan Purchase Agreement") by and between DLJ
Commercial Mortgage Corp., Prudential Mortgage Capital Funding,
LLC ("PMCF") and Prudential Mortgage Capital Company, LLC
("PMCC")
Ladies and Gentlemen:
I am secretary and counsel to Prudential Mortgage Capital Company, LLC, a
Delaware limited liability company (the "Company"), and, in such capacity, I am
familiar with the affairs of the Company.
I am providing this opinion in connection with the sale by PMCF to the
Depositor of certain mortgage loans pursuant to the terms of the Mortgage Loan
Purchase Agreement. This opinion is furnished to you pursuant to Section 7(ix)
of the Mortgage Loan Purchase Agreement. Terms used herein, but not otherwise
defined herein, shall have the meanings ascribed to them in the Mortgage Loan
Purchase Agreement.
I have examined copies of the Mortgage Loan Purchase Agreement, the
Certificate of Formation and the Operating Agreement of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures (other
than with respect to the Company), the authenticity of all documents submitted
to me as originals and the conformity to original documents of copies of
documents supplied to me. As to certain matters of fact relevant to the opinions
hereinafter expressed, I have relied solely upon statements and certificates of
the officers of the Company and others. I have also assumed (other than with
respect to the Company) that all documents, agreements and instruments have been
duly authorized, executed and delivered by all parties thereto, that all such
parties had the power and legal right to execute and deliver all such documents,
agreements and instruments, and that such documents, agreements and instruments
are valid, binding and enforceable obligations of such parties.
D-3B-1
<PAGE>
I am admitted to the Bar of the State of California, and I express no
opinion as to any laws other than the laws of the United States, the State of
California and the Limited Liability Company Act of the State of Delaware.
Based on the foregoing, I am of the opinion that:
1. The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
full power and authority to own its assets and conduct its business, to
execute, deliver and perform the Mortgage Loan Purchase Agreement and the
Indemnification Agreement (collectively herein, the "Agreements") and all
the transactions contemplated thereby, and the Company has taken all
necessary action to authorize the execution, delivery and performance of
the Agreements by it, and the Agreements have been duly authorized,
executed and delivered by it.
2. The execution and delivery of the Agreements by the Company and the
performance of its obligations under the Agreements will not (a) conflict
with any provision of any law or regulation to which the Company is
subject, or conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any of the Company's
organizational documents or, (b) to my knowledge, conflict with, result in
a breach of or constitute a default under any of the terms, conditions or
provisions of any agreement or instrument to which the Company is a party
or by which it is bound, or any order or decree applicable to the Company,
or result in the creation or imposition of any lien on any of the Company's
assets or property, in each case which would materially and adversely
affect the ability of the Company to carry out the transactions
contemplated by the Agreements.
3. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the Mortgage
Loans or the ability of the Company to carry out the transactions
contemplated by the Agreements.
4. To my knowledge, the Company 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 governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Agreements.
5. To my knowledge, no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Company or compliance by the Company with
the Agreements or the consummation of the transactions contemplated by the
Agreements, other than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees hereof
in connection with the transaction referred to herein. This letter may not be
relied upon, used, quoted, circulated or otherwise referred to by any other
person or for any other purpose, except as part of the closing set of documents
disseminated to parties to the transaction, without my prior written approval.
This opinion is
D-3B-2
<PAGE>
being given as of the date hereof and I express no opinion as to events or
conditions subsequent to such date.
Very truly yours,
John C. Kelly
D-3B-3
<PAGE>
SCHEDULE A
DLJ Commercial Mortgage Corp. Wells Fargo Bank Minnesota, N.A.
11 Madison Avenue 45 Broadway, 12th Floor
New York, New York 10010 New York, New York 10006
Donaldson, Lufkin & Jenrette Moody's Investor Services, Inc.
Securities Corporation 99 Church Street
11 Madison Avenue New York, New York 10007
New York, New York 10010
Prudential Securities Incorporated Fitch, Inc.
One New York Plaza, 18th Floor One State Street Plaza, 31st Floor
New York, New York 10292-2018 New York, New York 10004
Salomon Smith Barney Inc. McDonald Investments Inc.
388 Greenwich Street, 11th Floor 800 Superior Avenue
New York, New York 10013 Cleveland, Ohio 44114
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
D-3B-4
<PAGE>
EXHIBIT D-3C
FORM OF OPINION OF WINSTON & STRAWN,
PURSUANT TO SECTION 7(X)
November 7, 2000
Each of the Addressees listed on the Attached Schedule A
Re: DLJ Commercial Mortgage Trust 2000-CKP 1, Commercial
Mortgage Pass-Through Certificates, Series 2000-CKP1 (the
"Certificates")
Ladies and Gentlemen:
We have acted as special counsel to Prudential Mortgage Capital Funding
LLC, a Delaware limited liability company (the "Seller") and Prudential Mortgage
Capital Company, LLC, a Delaware limited liability company ("PMCC"), in
connection with the transactions contemplated by the Mortgage Loan Purchase
Agreement, dated as of October 27, 2000 (the "MPA") between the Seller, PMCC and
DLJ Commercial Mortgage Corp., a Delaware corporation (the "Purchaser"), and the
Pooling and Servicing Agreement, dated as of November 1, 2000 (the "PSA") among
the Purchaser, Key Corporate Capital Inc. (d/b/a Key Commercial Mortgage), as
Servicer (the "Servicer"), Midland Loan Services, Inc., as Special Servicer (the
"Special Servicer") and Wells Fargo Bank Minnesota, N.A., as Trustee (the
"Trustee").
Capitalized terms used herein, but not otherwise defined herein, shall have
the same meanings as such terms would be given if used in the MPA. This opinion
letter is delivered to you at our client's request pursuant to Section 7(x) of
the MPA.
As counsel for the Seller, we have examined, among other things, (i) the
base prospectus dated October 17, 2000 (the "Base Prospectus"); (ii) the
prospectus supplement dated October 27, 2000 (the "Prospectus Supplement")
relating to the Certificates in the form filed with the Commission pursuant to
Rule 424(b) of the General Rules and Regulations under the Act (such Base
Prospectus and Prospectus Supplement being hereinafter referred to collectively
as the "Prospectus"); (iii) the limited liability company agreements and by-laws
of the Seller and PMCC; (iv) good standing certificates issued by the Secretary
of State of the State of Delaware with respect to the Seller and PMCC; (v)
certain resolutions adopted by the Board of Directors of the Seller and PMCC,
and (vi) the opinions of John C. Kelly dated November 7, 2000, Secretary and
Counsel of the Seller and PMCC on which, with your approval, we have relied
(collectively, the "Opinions"). We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Seller, PMCC and such agreements, certificates of public officials, certificates
of officers or representatives of the Seller, PMCC and others, and such
D-3C-1
<PAGE>
Each of the Addressees listed on
the Attached Schedule A
November 7, 2000
other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties, other than the Seller and PMCC on
which we relied, with your permission, on the Opinions, we have assumed that
such parties had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such parties
of such documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein that we have not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Seller, PMCC and others.
We have relied, as to various questions of fact with respect to this
opinion letter, on the certificates of officers of the Seller and PMCC and on
oral or written statements and representations of officers and other
representatives of the Seller, PMCC and others. We also have examined originals,
or copies of originals certified to our satisfaction, of such agreements,
documents, certificates and other statements of government officials and other
instruments, as to such matters of fact as we have considered relevant and
necessary as a basis for this opinion letter.
Any opinion or statement herein which is expressed to be "to our knowledge"
or is otherwise qualified by words of like import means that the lawyers
currently practicing law with this Firm who have had an active involvement in
the negotiation and drafting of the MPA, the PSA and the preparation of the
Prospectus as it relates to the Mortgage Loans, or a lawyer in this Firm who had
active involvement in the negotiation and drafting of the MPA, the PSA and the
preparation of the Prospectus as it relates to the Mortgage Loans could have
contacted with reasonable effort, have no current conscious awareness of any
facts or information contrary to such opinion or statement; we have undertaken
no independent investigation with respect to such facts or information.
Members of our firm are admitted to the bar in the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction, other
than the laws of the United States of America and then only to the extent
specifically referred to herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. The MPA is a valid and binding agreement of the Seller and PMCC,
enforceable against the Seller and PMCC in accordance with its terms, and the
Indemnification Agreement is a valid and binding agreement of the Seller and
PMCC, enforceable against the Seller and PMCC in accordance with its terms,
except to the extent that enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership or other
<PAGE>
Each of the Addressees listed on
the Attached Schedule A
November 7, 2000
similar laws now or hereafter in effect relating to creditors' rights generally
and (b) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); provided, however, that we
express no opinion with respect (a) to title or ownership of, liens or security
interests in, or the transfer of property, (b) to the enforceability of any
provisions in the MPA and the Indemnification Agreement relating to consent to
jurisdiction insofar as such provisions purport to confer subject matter
jurisdiction to a federal court, and (c) to the validity, binding effect or
enforceability of any indemnification or contribution provisions to the extent
such obligation is contrary to applicable law or public policy. Further we wish
to point out that the enforceability of provisions in the MPA and the
Indemnification Agreement to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
2. In the course of acting as special counsel for the Seller and PMCC (a)
to the extent we have participated in the closing of a Mortgage Loan, we have
responded to inquiries from time to time by the Seller's closing coordinators,
reviewed title insurance commitments and surveys and prepared most of the loan
documents for such Mortgage Loan, and (b ) to the extent we have not
participated in the closing of a Mortgage Loan, we have reviewed certain
documents contained in the closing binder (as the same have been provided us by
either the Seller or PMCC) relating to such Mortgage Loan. In connection with
the preparation of the Prospectus as the same relates to the Mortgage Loans, we
have participated in conferences with officers and representatives of the Seller
as well as officers and representatives of the Depositor and the Underwriters at
which the contents of the Prospectus as the same relates to the Mortgage Loans
were discussed. Although we are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Prospectus as such statements relate to the Mortgage Loans and
have made no independent check or verification thereof, on the basis of the
foregoing, no facts have come to our attention that have led us to believe that
the statements relating to the Mortgage Loans in the Prospectus, the date of the
Prospectus Supplement or the date hereof, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein and relating thereto, in the light of the circumstances under
which they were made, not misleading, except that we express no opinion or
belief with respect to the financial statements, schedules and other financial
information included therein or excluded therefrom.
The foregoing opinions are limited to the federal laws of the United States
and the laws of the State of New York, and we express no opinion with respect to
the laws of any other state or jurisdiction.
D-3C-3
<PAGE>
Each of the Addressees listed on
the Attached Schedule A
November 7, 2000
This opinion letter is being delivered solely for the benefit of the
persons to whom it is addressed; accordingly, it may not be quoted, filed with
any governmental authority or other regulatory agency or otherwise circulated or
utilized for any other purpose without our prior written consent; provided, this
opinion letter may be included in the closing binders relating to the
Certificates. This opinion letter speaks solely as of the date hereof and we
assume no obligation to update this opinion letter for any reason.
Very truly yours,
Winston & Strawn
D-3C-4
<PAGE>
Each of the Addressees listed on
the Attached Schedule A
November 7, 2000
SCHEDULE A
----------
DLJ Commercial Mortgage Corp. Wells Fargo Bank Minnesota, N.A.
11 Madison Avenue 45 Broadway, 12th Floor
New York, New York 10010 New York, New York 10006
Donaldson, Lufkin & Jenrette Moody's Investors Services, Inc.
Securities Corporation 99 Church Street
11 Madison Avenue New York, New York 10007
New York, New York 10010
Fitch, Inc.
Prudential Securities Incorporated One State Street Plaza, 31st Floor
One New York Plaza, 18th Floor New York, New York 10004
New York, New York 10292-2018
McDonald Investments Inc.
Salomon Smith Barney Inc. 800 Superior Avenue
388 Greenwich Street, 11th Floor Cleveland, Ohio 44114
New York, New York 10013
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
D-3C-5
<PAGE>
EXHIBIT D-3D
FORM OF OPINION OF WINSTON & STRAWN,
PURSUANT TO SECTION 7(XI)
November 7, 2000
To Each of the Addressees
Listed on the Attached Schedule A
Re: DLJ Commercial Mortgage Trust 2000-CKP1, Commercial
Mortgage Pass-Through Certificates, Series 2000-CKP1
----------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Prudential Mortgage Capital Funding,
LLC, a Delaware limited liability company (the "Seller") and Prudential Mortgage
Capital Company, LLC ("PMCC"), in connection with the transactions contemplated
by the Mortgage Loan Purchase Agreement, dated as of October 27, 2000 (the
"MPA") between the Seller and DLJ Commercial Mortgage Corp., a Delaware
Corporation (the "Purchaser") and the Pooling and Servicing Agreement, dated as
of November 1, 2000 (the "PSA") between the Purchaser, Key Corporate Capital
Inc. (d/b/a Key Commercial Mortgage), as Servicer (the "Servicer"), Midland Loan
Services, Inc., as Special Servicer (the "Special Servicer") and Wells Fargo
Bank Minnesota, N.A., as Trustee (the "Trustee").
Capitalized terms used herein, but not otherwise defined herein, shall have
the same meanings as such terms would be given if used in the MPA. This opinion
letter is delivered to you at our client's request pursuant to Section 7(xi) of
the MPA.
The Seller has requested that we provide to you our opinion whether, in the
event that the Seller was to become a debtor (a "Debtor") in a proceeding under
Title 11 of the United States Code (the "Bankruptcy Code"), a bankruptcy court
having jurisdiction over the Seller as Debtor, in a properly presented and
argued case, (a) would determine that the Seller's transfer of commercial and
multifamily mortgage loans (the "Mortgage Loans") owned by it to the Purchaser
pursuant to the MPA constituted a "sale" or absolute assignment effective to
convey ownership of the Seller's entire right, title and interest in, to and
under such Mortgage Loans, as opposed to recharacterizing the transfer as a
grant of a mere security interest in the Mortgage Loans by the Seller to the
Purchaser to secure a borrowing, and (b) if determining the transfer to
constitute a "sale", would accordingly neither find the Mortgage Loans to be
property of the Seller's estate within the meaning of Section 541 of the
Bankruptcy Code, 11 U.S.C. ss. 541, nor enforce the automatic stay imposed by
Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a), to prevent payment
on the Certificates (as defined below).
D-3D-1
<PAGE>
In connection with this opinion letter we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such documents
as we have deemed necessary to render this opinion. Such documents include the
following (collectively, the "Documents") which the party or parties thereto
executed as of or prior to the Closing Date:
(1) the MPA;
(2) certified resolutions of the managing member of the Seller,
authorizing (among other things) execution of the MPA and the consummation
of the transactions contemplated thereby;
(3) the certificate executed by an officer of the Seller attached as
Exhibit A to this letter (referred to below as the "Seller Certificate");
(4) certified copies of the Certificate of Formation and limited
liability company agreement of the Seller (together with all amendments
thereto, if any); and
(5) a certificate of the Secretary of State of Delaware, dated
November __, 2000, attesting to the continued corporate or limited
liability company existence and good standing of the Seller in Delaware.
In our examination, we have assumed the legal capacity of natural persons,
the genuineness of all signatures, the authenticity of all Documents submitted
to us as originals, the conformity to original Documents of all Documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such Documents. In making our examination of Documents that
constitute agreements, we have assumed that the parties thereto had the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such Documents and, subject
to the qualifications set forth in our opinion dated as of the date hereof
relating to the enforceability of such Documents, the validity and binding
effect thereof.
Our examination of matters of fact relating to the opinions expressed below
is based solely upon a review of the representations, warranties and statements
as to factual matters contained in or confirmed by the Documents, the truth and
accuracy with respect to which we have relied, with your approval and without
independent verification or investigation. In addition, we have assumed that the
parties to the Documents will comply with their undertakings, covenants and
agreements contained in the Documents, to the extent material to the opinions
expressed herein.
We hereby disclaim any opinion concerning the state of the Seller's title
to or other interest in the Mortgage Loans.
THE TRANSACTION FACTS
The Documents reveal or confirm the following facts concerning the
transactions contemplated in the MPA (the "Transactions"), which facts we have
assumed, without
D-3D-2
<PAGE>
independent investigation and with your permission, are and will remain at all
relevant times, accurate in all material respects.
(a) The Seller is a limited purpose Delaware limited liability company, as
provided in its Certificate of Formation and the LLC Agreement. PMCC, a Delaware
limited liability company is the sole member and equityholder with respect to
the Seller.
(b) Pursuant to the terms of the MPA, the Seller will sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse
except as expressly provided therein, all of the Seller's right, title and
interest in, to and under the Mortgage Loans, which Mortgage Loans the Seller
has identified on the Mortgage Loan Schedule (or an amendment thereto) in
accordance with the conveyance procedures set forth in the MPA.
(c) As stated in the MPA, the Seller is to convey the Mortgage Loans in
consideration of the Depositor's payment in immediately available cash funds of
the purchase price (the "Purchase Price") which is equal to 100% of the
Aggregate Cut-off Date Balance (i.e., the aggregate outstanding principal
balance of the related Mortgage Loans as of November 1, 2000, after application
of all payments due thereon on or before such date, whether or not received,
subject to a variance of plus or minus 5%). The Purchase Price which the Seller
is to receive upon the conveyance of Mortgage Loans to the Purchaser represents
and will continue to represent fair consideration and reasonably equivalent
value received in exchange for the conveyances.
(d) Contemporaneously with its purchase of the Mortgage Loans under the MPA
and pursuant to the PSA, the Purchaser will create DLJ Commercial Mortgage Trust
2000-CKP1 (the "Trust"), the primary assets of which will consist of multifamily
and commercial mortgage loans acquired by the Purchaser, including the Mortgage
Loans. Beneficial ownership of the assets of the Trust will be evidenced by a
series of mortgage pass-through certificates designated as follows: Class A-1A,
Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class C, Class
D, Class E, Class R and Class S (collectively, the "Certificates").
(e) The Seller in the MPA makes certain representations and warranties to
the Purchaser regarding the transferred Mortgage Loans, including with respect
to their satisfaction of certain eligibility criteria set forth in the MPA. The
Seller in the MPA agrees in certain circumstances to repurchase from the
Purchaser, at the related Purchase Price, any Mortgage Loan (a "Defective
Mortgage Loan") in respect of which there has been a Material Breach (as defined
in the PSA) or Material Document Defect (as defined in the PSA) or in the
alternative, if the Seller's obligation to repurchase a Defective Mortgage Loan
arises within a specified period after the Closing Date and if the Defective
Mortgage Loan is still subject to the Pooling and Servicing Agreement, the
Seller may effect a permitted substitution of a Mortgage Loan, in exchange for a
reconveyance to it by the Purchaser of the Defective Mortgage Loan (such
repurchase or substitution obligation of the Seller being referred to sometimes
below as the "Representation Support Obligation"). The Representation Support
Obligation is of a kind customarily used in the transfer of ownership of assets
similar to the Mortgage Loans.
D-3D-3
<PAGE>
(f) An Affiliate of the Seller, PMLS Limited Partnership ("PMLS"), will act
as a subservicer for the Master Servicer. Pursuant to certain contractual
provisions contained in a Subservicing Agreement dated November 1, 2000 between
PMLS and the Master Servicer, PMLS has agreed to perform certain servicing
functions with respect to the related Mortgaged Properties.
(g) The MPA requires that, on or before the Closing Date, the Seller shall
deliver or cause to be delivered to the Purchaser or its designee, the Mortgage
File with respect to each Mortgage Loan.
(h) The Seller intends the transfer of the Mortgage Loans to the Purchaser
under the MPA to constitute sales or absolute assignments conveying ownership of
the associated Mortgage Loans to the Purchaser, such that the Mortgage Loans
would not be property of the Seller's estate in the event of a bankruptcy of the
Seller. The Seller does not intend to take any action inconsistent with the
Purchaser's (or the Trust's) ownership of the Mortgage Loans. The Seller's
financial statements reflect that the Mortgage Loans have been sold. The Seller
indicates on its internal books and records (including its computer files
related to the Mortgage Loans) that the Mortgage Loans have been conveyed to the
Purchaser and its assignees.
(i) The MPA does not: (i) grant the Seller a right to, or require the
Seller to, repurchase any Mortgage Loans, (ii) provide for a reconveyance of any
Mortgage Loan to the Seller, or (iii) provide for the retention by the Seller of
any interest whatsoever in the related Mortgage Loans, except that the Seller
has undertaken the Representation Support Obligation in favor of the Purchaser
and its assignees as described above.
(j) After a conveyance of the Mortgage Loans, neither the Purchaser nor its
assignees has a right to unilaterally alter the Purchase Price therefor. None of
the Seller or its Affiliates has any ongoing direct payment obligations to the
Purchaser or to its assignees (except pursuant to the MPA).
(k) The Purchase Price which the Seller is to receive from the Purchaser in
connection with conveyances of the Mortgage Loans, represents fair consideration
and reasonably equivalent value received therefor. The Seller conveys the
Mortgage Loans to the Purchaser pursuant to the MPA in the ordinary course of
business and neither in contemplation of insolvency nor with an intent to
hinder, delay or defraud its creditors or with a view to the preference of one
or more of its creditors to the exclusion in whole or in part of others.
(l) The MPA does not provide for any agreements or other arrangements
whereby the Seller is directly obligated to protect the Purchaser or its
assignees against (i) the risk of fluctuations in the market value of the
Mortgage Loans, or (ii) increases or decreases in the rate of prepayments on the
Mortgage Loans.
(m) The Seller will not receive any Certificates as consideration for the
transfer of the Mortgage Loans.
D-3D-4
<PAGE>
In addition to the foregoing facts discovered from our review of the
Documents, we are assuming for purposes of this opinion letter (with your
permission and without independent investigation) that the following statements
or representations are correct:
(aa) no document or agreement not constituting a Document (each of which
Documents we have reviewed), to which the Seller or any of its Affiliates is a
party: (i) creates recourse against the Seller based on the failure of an
obligor to make payments on the Mortgage Loans, (ii) grants the Seller a right
to purchase any Mortgage Loans, (iii) provides for a reconveyance of any
Mortgage Loans to the Seller, or (iv) provides for the retention by the Seller
of any interest whatsoever in the Mortgage Loans; and
(bb) All acts have been taken which are necessary to comply with any
applicable legal formality which is a condition to the effective transfer of the
Mortgage Loans to the Purchaser, including, without limitation, the filing of
financing statements, filing of assignments of the Mortgage Loans, endorsing
and/or obtaining possession of instruments or other acts as and to the extent
required for the Purchaser to effectuate the transfer of the Mortgage Loans to
the Purchaser.
DISCUSSION
Courts examining whether a transfer of "cash flow" assets (i.e., assets
representing rights to payment) constitutes a sale or absolute assignment, or in
the alternative, a secured financing usually describe their analysis as an
attempt to determine the intent of the parties based on all the facts and
circumstances underlying the transaction. Major's Furniture Mart, Inc. v. Castle
Credit Corp., 602 F.2d 538, 543 (3d Cir. 1979); Bear v. Coben (In re Golden Plan
of California, Inc.), 829 F.2d 705, 708 (9th Cir. 1986); Kassuba v. Realty
Income DFC (In re Kassuba), 562 F.2d 511, 514 (7th Cir. 1977); Tavormina v.
Aquatic Co. (In re Armando Gerstel, Inc.), 65 B.R. 602, 6045 (S.D. Fla. 1986).
The courts accomplish this determination of intent, typically, by examining
particular objective attributes of the transaction as documented by the parties,
in the context of other actions that the parties take both in preparation for
the transaction and as it unfolds. The principal objective attributes or factors
which the courts have identified and emphasized are discussed below.
1. Recourse to the Seller. Numerous court decisions have identified the
purchaser's retention of a right of recourse to the seller as significant in
determining whether to recharacterize a purported sale of a financial asset.
This recourse can take the form of seller guaranties of collectibility;
repurchase obligations; failure of the transfer to extinguish or reduce an
independent obligation of the seller for which an "absolute assignment" was
made; holding back reserves from the purchase price which are released to the
seller only as receivables pay; and similar devices. See Major's Furniture Mart,
Inc. v. Castle Credit Corp., Inc., 602 F.2d 538 (3d Cir. 1979) (accounts sold
with "full recourse", with a reserve from the purchase price held back against
future non-paying accounts, and with a requirement that seller repurchase
accounts delinquent after 60 days, held to be disguised loans); Bear v. Coben
(In re Golden Plan of California, Inc.), 829 F.2d 705 (9th Cir. 1986) (mortgage
notes and deed of trust assigned "without recourse", with no guarantee of
repayment or compensation in event of foreclosure, held to be sales); Fireman's
Fund Insurance Cos. v. Grover (In re Woodson Co.), 813 F.2d 266
D-3D-5
<PAGE>
(9th Cir. 1987) (seller's purchase of insurance policy to insure buyers of
Mortgage Loans in mortgages against loss one important factor in court's holding
of disguised loan); Dewhurst v. Citibank (Arizona) (In re Contractors Equipment
Supply Co.), 861 F.2d 241 (9th Cir. 1988) (factor in determination that
receivables were pledged and not absolutely assigned was that notification to
account debtor did not reduce or extinguish existing obligation of assignor);
Blackford v. Commercial Credit Corp., 263 F.2d 97, 105, 106, 108 (5th Cir.
1959), cert. denied, 361 U.S. 825 (1959) (sale at 15 percent initial discount,
with 15 percent less finance charge to be paid to seller as accounts collected,
coupled with seller's warranty of collectibility, held a disguised loan); Milana
v. Credit Discount Co, 163 P.2d 869 (Cal. 1945) (purported absolute assignment
held secured loan where purchase price reserve held back until all accounts were
paid, seller warranted solvency of account debtors until accounts paid, and
seller guaranteed payment of accounts); People v. Service Institute, Inc., 421
N.Y.S.2d 325, 327 (1979) (reserve withheld from purchase price plus full
recourse held an important factor in whether sale or loan for usury purposes);
Asset Restructuring Fund, L.P. v. Liberty National Bank and Resolution Trust
Corp., 886 S.W. 2d 548 (Tex. App. 1994)(lead bank had no obligation to
repurchase the Mortgage Loans upon any default by an underlying borrower); see
also Annotation, When Transfer of Accounts or Other Choses in Action is Deemed a
Sale Rather Than a Pledge as Security For a Loan, and Vice Versa, 95 A.L.R. 1197
(1935) (recourse coupled, to a greater or lesser extent, with other factors
suggests a disguised loan), and the numerous older cases cited therein.
Even though courts have deemed recourse to the seller an important
attribute indicating a secured borrowing, there is authority to the effect that
recourse alone, without other factors indicating a borrowing, does not require
recharacterization. See Major's Furniture Mart, 602 F.2d at 545; Service
Institute, Inc. 421 N.Y.S.2d at 327; Goldstein v. Madison Nat'l. Bank, 89 B.R.
274, 277 (D.D.C. 1988) (absolute assignment not for security despite recourse
provisions, where language of agreements, conduct of parties, and evidence that
debt was extinguished upon assignment indicated no security intended); UCC ss.
9-502, cmt. 4 (subsection (2) of Section 9-502 "recognizes that there may be a
true sale of accounts or chattel paper although recourse exists."); but see G.
Gilmore, Security Interests In Personal Property ss. 44.4, at 1230 (1965) ("If
there is a right to charge back uncollectible accounts . . . or a right to claim
a deficiency, then the transaction should be held to be for security [rather
than a sale].").
Moreover, some courts have held transfers of financial assets to be sales
even where partial or full recourse existed in addition to other factors
(discussed below) typically deemed suggestive of a borrowing. In re Golden Plan,
829 F.2d at 710 (fact that purchasers of mortgage loans from broker could elect
to receive payments from broker despite late collections on mortgages, in return
for foregoing any late charges later collected, did not preclude sale treatment;
other factors such as commingling of mortgage payments with general operating
funds also present); Hatoff v. Lemons & Assocs. (In re Lemons & Associates,
Inc.), 67 B.R. 198 (Bankr. D. Nev. 1986) (fact that mortgage investment brokers
engaging in "Ponzi" scheme provided full recourse and repurchase guarantee to
investors did not preclude sale treatment, even with presence of other factors);
A.B. Lewis Company v. National Investment Corp. of Houston, 421 S.W.2d 723 (Tex.
Civ. App. 1967) (automobile conditional sales contracts assigned "with full
recourse" held not inconsistent with sale intended by parties); Broadcast Music,
Inc. v. Hirsch, 104 F.3d 1163 (9th Cir. 1997) (individual's assignment of future
music royalties to two creditors sufficient to divest assignor of property
interest, therefore tax lien did
D-3D-6
<PAGE>
not attach to royalties, even where assignment did not extinguish debt and
assignment could be terminated following repayment of debt); see also United
States v. Poling, 73 F.Supp.2d 882 (S.D. Ohio 1999) (individual's assignment of
monthly annuity payments to bank in connection with secured loan from bank
raised a "triable issue of fact," sufficient to defeat IRS's motion for summary
judgment, on issue of whether individual retained property interest sufficient
for tax lien to attach).
The recourse provisions considered as adverse to sale treatment in the
decisions cited above were extremely broad in scope. That is, they permitted
recourse to the seller for nonpayment arising from the financial inability of
the obligor to pay (referred to below as "credit recourse"), or arising from any
other reason, and in many instances also required the seller to repurchase
assets which did not comply with the seller's representations and warranties as
to validity, legality, absence of disputes or setoff rights, and other items not
related to the financial strength of the account obligor but ascertainable at
the time of the transfer (referred to below as "non-credit recourse"). Because
the recourse provisions in the reported decisions have been so broad, no court
to our knowledge has expressly concluded that non-credit recourse should be
viewed as distinct and different from credit recourse, with non-credit recourse
having little or no adverse effect on a sale determination.
Nonetheless, good reason exists to believe that if a court were squarely
presented with the distinction by a purchaser arguing for sale treatment, the
court would recognize the distinction. First, the distinction has been
recognized by one noted commentator on the law of secured transactions. Grant
Gilmore, in discussing the history of the purchase of receivables ("factoring")
in the textile and other industries, distinguishes factoring from mere
assignments for security by noting that factoring involves a true sale of
receivables, which in turn involves a transfer of the credit risk that the
account obligor will be financially unable to pay. See G. Gilmore, supra, ss.
5.2, at 131-32, ss. 5.4, at 137, ss. 8.7, at 275-76. Moreover, United States
banking regulators, in establishing, under previous regulations addressing
regulatory accounting for banks, otherwise very strict rules against recourse of
any kind for transfers which banks sought to treat as sales for regulatory
accounting purposes, nevertheless granted sale treatment where recourse could be
had against the selling bank for failure of receivables to be legal, valid and
free of dispute as represented by the seller. See Reports of Condition and
Income - Revision of the Instruction for the Treatment of Sales of Assets, A-33,
A-34 (Fed. Fin. Inst. Exam. Council, Oct. 28, 1985).
Finally, the credit recourse distinction is consistent with the common law
of assignment, including assignments of accounts receivable. An assignment was
viewed at common law to represent a conveyance or transfer of the assignor's
entire right, title and interest in the property assigned; that is, the
equivalent of a sale. 6A C.J.S. Assignments ss. 2, at 590-91 (1975); 4 Corbin on
Contracts ss. 861, at 421-22 (1951). Assignments at common law were typically
held to include implied non-credit warranties of the assignor to the assignee,
such as the following: that the assignor would do nothing to defeat or impair
the value of the assignment and had no knowledge of any fact that would do so;
that the right, as assigned, actually existed and was subject to no limitations
or defenses good against the assignor other than those stated at the time of
assignment; and that any writing evidencing the right delivered to the assignee
was genuine and was, in fact, what it purported to be. Restatement (Second) of
Contracts ss. 331(1), at 61 (1981); 6A C.J.S., Assignments ss. 90, at 743-47.
The assignment, however, does not "of itself
D-3D-7
<PAGE>
operate as a warranty that the obligor is solvent or that he will perform his
obligation." Restatement (Second) of Contracts, ss. 333(2); 6A C.J.S.,
Assignments ss. 90(b), at 745.
Thus, at common law, an assignment with the legal effect of a sale included
implied warranties as to non-credit matters such as legality, validity and
freedom from defenses of the contract right assigned, but did not include a
warranty or guarantee that the obligor would ultimately be able to pay--that is,
credit recourse. That a sale of receivables could occur with express provisions
for non-credit recourse is consistent with this treatment of assignments by the
courts at common law.
Intuitively, the credit/non-credit recourse distinction also appears valid.
A buyer only truly "buys" what it contracts to buy, and not something else; the
fact that the buyer is purchasing accounts receivable or loans should not change
this conclusion. Part of what the buyer of receivables purchases is credit risk
of the account debtors; this risk is an inherent characteristic of the property
transferred. That the buyer wishes to avoid purchasing other risks that are not
inherent in the property, such as the risk of disputes and offsets between the
account debtor and the seller, or of documentation problems involving failure to
comply with applicable consumer credit disclosure requirements, should not
suggest that the buyer has not made a true purchase of the accounts. Thus, a
buyer should be able to successfully argue that retaining direct recourse
against the seller for non-credit reasons is not suggestive of a secured
borrowing.
2. Seller's Retention of Servicing and Commingling of Proceeds. A number of
courts have noted that the seller's continued servicing of transferred accounts
indicates a secured borrowing rather than a sale. The courts have found such an
arrangement particularly problematic when the seller/servicer commingles account
proceeds with its general operating funds. See Southern Rock v. B & B Auto
Supply, 711 F.2d 683, 685 (5th Cir. 1983) (dicta) (retained right of assignor to
receive proceeds, coupled with agreement titled "Security Agreement" with
assignment of "collateral security", defeats claim of absolute assignment);
Petron Trading Co. v. Hydrocarbon Trading & Transport Co, 663 F. Supp. 1153,
1159 (E.D. Pa. 1986) (no absolute assignment of rights to payment under contract
where assignor continued to prepare invoices for contract payments, did not
notify account debtor and retained rights under contract to petition account
debtor for price adjustments); In re Major Funding Corp., 82 B.R. at 443, 448
(Bankr. Tex. 1987)(commingling mortgage repayments and paying investors from
single operating account, coupled with repurchase obligation of seller upon
default, listed as factors in holding no sale); People v. Service Institute,
Inc., 421 N.Y.S.2d at 327 (non-notification and assignor's commingling rather
than holding proceeds in separate trust or escrow account held evidence that
assignment was not absolute but for security).
3. Purchaser's Failure to Investigate Credit of Account Debtor. In the
following case, the court held that the buyer's failure to undertake an
independent credit investigation of the underlying account debtors was evidence
that the parties intended a loan with security rather than a sale or absolute
assignment. Mid-Atlantic Supply, Inc. v. Three Rivers Aluminum Co., 790 F.2d
1121, 1123 (4th Cir. 1986). The Court of Appeals in In re Golden Plan, supra,
also recognized that the failure of the mortgage participation investors to
conduct an independent credit investigation concerning the underlying purchased
loans suggested a disguised loan, but found other evidence in that case
overriding. In re Golden Plan, 829 F.2d at 710 n.6. Intuitively, also, a failure
of the purchaser to investigate or consider the credit
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characteristics of, or otherwise examine the likelihood (statistical or
otherwise) of receiving payment from the obligor on the financial asset, would
seem to suggest a primary reliance (assuming other factors such as recourse are
present) on the credit of the seller, rather than the obligor.
4. Seller's Right to "Excess" Collections. In the following decisions, the
courts concluded that over-collateralization, with a right in the seller to
retain eventual collections on accounts over and above a predetermined amount of
collections, is evidence of a loan rather than a sale. In re Evergreen Valley
Resort, Inc., 23 B.R. at 659, 661 (Bankr. D. Me. 1982); Gold Coast Leasing Co.
v. California Carrots, Inc., 155 Cal. Reptr. 511, 514 (1979); First Nat. Bank of
Louisville v. Hurricane Elkhorn Coal Corp. II (In re Hurricane Elkhorn Coal
Corp. II), 19 B.R. 609, 617 (Bankr. W.D. Ky. 1982); Hassett v. Sprague Electric
Co. (In re O.P.M. Leasing Services, Inc.), 30 B.R. 642, 646-48 (Bankr. S.D. N.Y.
1983); Levin v. City DFC Co. (In re Joseph Kanner Hat Co., Inc.), 482 F.2d 937,
940 (2d Cir. 1973); In re Contractors Equipment Supply Co., 861 F.2d at 245. The
Court of Appeals for the Ninth Circuit concluded that an assignee's charging an
excessive discount was evidence of a loan, rather than an absolute assignment,
but did not expressly state who retained the "excess" proceeds as the
receivables were paid. Presumably it was the assignor. England v. Industrial
Comm'n. (In re Visiting Home Services, Inc.), 643 F.2d 1356, 1359 (9th Cir.
1981).
5. Retention of Option to Repurchase. In the following decisions, the
courts concluded that the seller's ability to regain its prior interest in the
accounts through the option of a repurchase, by itself or a third party on its
behalf, indicated the transaction was a security device, not a sale. In re
Currie, 57 B.R. at 224, 225 (Bankr. M.D. La. 1986); In re Evergreen Valley
Resort, Inc., 23 B.R. at 661; In re Joseph Kanner Hat Company, 428 F.2d at 940.
6. Right to Alter Pricing Terms Unilaterally. In the Major's Furniture Mart
decision, the court discussed as one factor indicating a borrowing rather than a
sale the ability of the buyer to unilaterally alter the pricing terms of the
factoring agreement at issue. Major's Furniture Mart, 602 F.2d at 546.
7. Right to Alter or Compromise Other Terms of the Transferred Assets
Unilaterally. In Northern Trust Co. v. FDIC, 619 F. Supp. 1340 (W.D. Okla.
1985), the court examined a participant bank's challenge to the FDIC's actions,
as liquidator of the failed Penn Square Bank, in setting off deposits of
borrowers from Penn Square against the borrower's participated loans. The court
addressed whether Penn Square had "sold" participation interests in certain
loans, thus precluding setoff as to the portion of the loans "owned" by the
participant. Noting that Penn Square "retained sole discretion to modify or
compromise the loans," that Penn Square's responsibility to its participant was
limited to the same care that Penn Square exercised with its own
non-participated loans, and that the participation agreement gave the
participant little input into Penn Square's management of the participated loans
and the collateral backing the loans, the court held that the participation "did
not create or transfer any ownership or property rights" in the participated
loan. Id. at 1342; see also Hibernia Nat. Bank v. FDIC, 733 F.2d 1403, 1407
(10th Cir. 1984) (participation providing for complete discretion of loan
originator in dealing with the loan, including the right to release or
substitute collateral and to repurchase the loan, did not transfer ownership
interest in loan to participating bank).
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Thus, a court could view the retention by a transferor of absolute
discretion and control to alter or compromise the terms of the asset transferred
as strongly suggesting a secured financing rather than a sale.
8. Language of Documents and Conduct of Parties. Where other factors are
present, the courts will often discuss the language the parties used in the
document or agreement governing the transaction. Courts focus on terms such as
"security" or "collateral" where the other factors indicate a loan, or on terms
such as "sell" or "absolutely convey" where other factors support (or do not
preclude) sale treatment. See In re Golden Plan, 829 F.2d at 709, 710 n.3
(provision in assignment agreement "without recourse" suggests sale where other
countervailing factors are not present): Goldstein, 89 B.R. at 277 ("orders,
assigns and sets over" language supported sale treatment); In re First City
Mortgage Company, 69 B.R. 765, 767 (Bankr. N.D. Tex. 1986) (language in document
coupled with preexisting debtor-creditor relationship indicated loan); Lyon v.
Ty-wood Corp., 239 A.2d 819, 821 (1968) (absolute conveyance language was
dispositive); In re Columbia Pacific Mortgage, Inc., 20 B.R. at 262-63 (language
in participation agreement involving purchase of an 80% interest in a package of
loans which described transaction as a "sale" and "purchase" coupled with
provision in agreement stating that seller retained physical possession of the
mortgage documents "all in trust for the account of the seller and purchaser as
owners thereof"). For one court, the language in an agreement and conduct of the
parties triumphed over full recourse provisions, and the court found a sale had
occurred. In re Lemons, 67 B.R. at 1020, 20910 (Bankr. N.D. Ala. 1986).
Many courts, however, de-emphasize the language used in a document, and
consider intent (as ascertainable from the presence or absence of the attributes
and factors outlined above) and actual conduct more relevant. See Major's
Furniture Mart, 602 F.2d at 544-45 ("it is more important what the parties do
than what they say they do"); In re Hurricane Elkhorn, 19 B.R. at 616;
Annotation, supra, 95 A.L.R. at 1197 ("The courts will generally determine the
intention of the parties, and the nature of the transaction, by reference not to
what they called it, but to what they in fact meant to and did effect.").
The cases cited and discussed above illustrate the typical approach of
courts considering the recharacterization issue in the context of a purported
sale of financial assets.(11)
--------------------------------------------------------------------------------
(11) The United States Bankruptcy Court for the Southern District of Ohio has
alsoaddressed this subject, but in a somewhat conclusory decision which did not
analyze the issues in depth. See In re Federated Department Stores, Inc., 1990
Bankr. Lexis 2453 (Bankr. S.D. Ohio 1990). In that decision the court approved a
receivables purchase agreement for the debtor department stores to obtain
post-petition financing on favorable terms. The court found that the sale of
private label credit card receivables pursuant to the terms of that agreement
would constitute "true arms-length sales of the Receivables for fair
consideration and reasonable equivalent value under applicable law, including
the Uniform Commercial Code." Id. The court stated the following reasons for
that conclusion: the purchaser "bears the risk that the Receivables will prove
uncollectible"; the purchaser "has a very limited right of recourse" against the
sellers and this right of recourse "is not related to any defaults in payment
under the Receivables by account obligors"; the sellers "have no right to redeem
or reacquire the Receivables transferred . . ."; the purchase price paid by the
purchaser "is approximately equal to the amount that could generally be obtained
by each of the {sellers} in the marketplace from unaffiliated entities in
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Generally, the presence or absence in a transaction of one or more of the
particular attributes discussed above will not be dispositive of a court's
conclusion that a sale, or alternatively a secured borrowing, has occurred.
Rather, courts have tended to view the transaction as a whole, and attempt to
determine whether on balance the objective attributes indicate an intent to
transfer ownership, or merely a security interest. The court will examine
details of the transaction and determine to what extent the seller has
transferred economic risks and benefits with respect to the assets, as well as
control over the assets (e.g., servicing). While the form of the transaction is
not dispositive, if the seller has transferred to the purchaser a substantial
portion of the economic risks and benefits of the assets, then language in a
document or evidence of the intent or state of mind of the parties at the time
of the transaction can reinforce the court's determination that a sale has
occurred. In some instances, the form of the relationship between purported
seller and buyer can suggest that the parties intend the transaction to be a
sale - for example, the use of a separate collection agent. The court decisions
also demonstrate that it is possible to retain some recourse to the seller in a
transaction and still obtain sale treatment, even if other factors such as
continued servicing by the seller are present, provided the parties document and
structure their relationship as a sale and treat the servicing aspect as an arms
length, bargained-for transaction. In this regard, the buyer's paying a
separate, discernible fee or other consideration for the servicing function
and/or contracting this function to a third party would appear to facilitate
sale treatment (although, as noted, no single factor or combination of factors
is or need be dispositive).
ANALYSIS OF THE TRANSACTIONS -- THE OPINION
Application of the court decisions and principles discussed above to the
transactions contemplated in the MPA reveals, in our view, that the parties
intend the Seller's transfer of the Mortgage Loans to the Purchaser to
constitute a conveyance of the Seller's entire beneficial ownership in the
Mortgage Loans.
We note that the factors cited in cases supporting recharacterization, are
not present in the Transaction Facts. While the Seller has agreed to perform
certain subservicing
--------------------------------------------------------------------------------
comparable transactions"; the amount to be paid by the purchasers was calculated
pursuant to a formula "similar to the purchase price formulas utilized by the
marketplace in comparable transactions"; although the seller was to continue
servicing and collection, such collection was to be made "through lock-box
accounts under the control of the purchasers" "valid business reasons exist for
not notifying account obligors of the sale of their accounts . . ."; and the
sellers and purchaser "intend the purchases of the Receivables to be true sales
and not lending transactions." Id. The court thus concluded that the receivables
"are the sole property" of the purchaser, and that the sellers retained no
ownership or lien interest in the receivables or proceeds. Id. To identical
effect, see also In re Federated Department Stores, Inc., 1990 Bankr. Lexis 1557
(Bankr. S.D. Ohio 1990). These decisions illustrate one court's application, in
a bankruptcy case requiring the court to characterize a transfer of accounts
receivable, of many of the principles discussed above.
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<PAGE>
duties with respect to the Mortgage Loans on behalf of the Purchaser, the Seller
does not guarantee the payment obligations under the Mortgage Loans to the
Purchaser. We further note that the Purchaser does not retain credit recourse
directly to the Seller upon the failure of an obligor to pay. Direct recourse to
the Seller does exist in respect of the Representation Support Obligation. The
representations and warranties which create such direct recourse do not,
however, assure the Purchaser or the Trust of the continuing creditworthiness of
the obligors, but rather concern the character of the Mortgage Loans at the date
of conveyance. As discussed above, the existence of such "non-credit recourse"
should not influence a court to recharacterize the transfers.
With regard to servicing arrangements, as discussed above, an affiliate the
Seller will perform certain subservicing duties with respect to the Mortgage
Loans after their transfer to the Purchaser and concurrent transfer to the
Trust. This factor, which in light of some court decisions might otherwise be
viewed as adverse to a characterization of the transfers as conveyances of the
entire beneficial ownership in the Mortgage Loans, are mitigated in our view,
however, because the Seller's affiliate performing such subservicing obligations
is acting in a separate capacity as agent of the Purchaser and its assignee, the
Trust (and the Trustee), and a separate fee is being paid to such Seller's
affiliate by the Master Servicer for the performance of its subservicing
obligations which is distinct from the Purchase Price. Accordingly, we believe
it is reasonable to conclude that the subservicing role of the Seller's
affiliate, alone or in combination with other factors, should not induce a court
to recharacterize the transfer of the Mortgage Loans.
In addition to the foregoing, we note the following additional attributes
of the transaction which we believe would support a determination that the
Seller's entire beneficial ownership has been conveyed.
1. The Seller has no general right to repurchase the Mortgage Loans without
the prior consent of the Purchaser and the Trust.
2. Neither the Seller nor the Purchaser has the right to unilaterally alter
the Purchase Price subsequent to purchase.
3. The language of the documents and conduct of the parties reflect a clear
intent by the Seller to convey, and by the Purchaser to purchase and receive,
the Mortgage Loans.
4. The Seller discloses in its financial statements that the Mortgage Loans
have been sold and the Seller's internal books and records reflect that the
Mortgage Loans have been conveyed to the Purchaser and are subject to the
interests of the Purchaser's assignees, and other disclosures to its creditors
will be consistent with the same.
5. While the credit of individual obligors under the Mortgage Loans has not
necessarily been and will not necessarily be examined by the Purchaser, it is
our understanding from discussions with representatives of the Seller and the
Purchaser that the credit and repayment characteristics of the obligors as a
group, including prior repayment experience on similar Mortgage Loans, have been
and will be analyzed and studied in connection with
D-3D-12
<PAGE>
investment decisions by the Purchaser, in a manner indicating reliance upon the
credit of the obligors as a group, and not reliance upon the credit of the
Seller or its Affiliates.
Accordingly, based upon the foregoing, but subject to the qualifications
set forth below, it is our opinion that should the Seller become a Debtor in a
case under the Bankruptcy Code, under present reported decisional authority and
statutes applicable to bankruptcy cases, and if the matter were properly briefed
and presented to a court exercising bankruptcy jurisdiction, the court,
exercising reasonable judgment after full consideration of all relevant factors,
(a) would determine that the Seller's transfer of the Mortgage Loans owned by it
to the Purchaser pursuant to the MPA, constituted a "sale" or absolute
assignment effective to convey ownership of the Seller's entire right, title and
interest in and to the Mortgage Loans to the Purchaser, as opposed to
recharacterizing the transfers, and (b) in so determining the transfers to
constitute conveyances of ownership, would accordingly neither find such
Mortgage Loans to be property of such Debtor's estate within the meaning of
Section 541 of the Bankruptcy Code, 11 U.S.C. ss. 541, nor enforce the automatic
stay imposed by Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a), to
prevent the payment on the Certificates.
LIMITATIONS
The foregoing opinion is qualified in the following respects.
In connection with the above opinion, we call to your attention that, while
we believe the opinion is supported by a sound analysis of the Transactions,
there are no reported controlling judicial precedents directly on point.
Accordingly, we have examined and have relied upon judicial decisions involving
facts and circumstances similar or closely analogous to certain of the facts and
circumstances involved in the Transactions, as well as decisions more generally
discussing whether the transfer of an asset (or a participation interest
therein) was a transfer of ownership (or beneficial ownership) or instead a
transfer of a limited interest for the purpose of securing an extension of
credit.
In addition, we wish to note that judicial analysis of the
recharacterization issue has typically proceeded on a case-by-case basis, and
determinations are usually made based on an analysis of the facts and
circumstances of the particular cases, rather than through the application of
well developed legal doctrines. Reported court decisions do not conclusively
establish the relative weight to be accorded to the individual factors present
in the Transactions and do not establish consistently applied general principles
or guidelines with which to analyze such factors.
In addition, if a bankruptcy court were incorrectly to decide an issue in
respect of which an opinion has been given, the doctrine of mootness may as a
practical matter preclude the effective appellate review of the bankruptcy
court's ruling (unless the adversely affected party obtains a stay of the
confirmation order, which usually requires the posting of a substantial bond).
We express no opinion as to whether a bankruptcy court's ruling with respect to
the subject matter of this opinion would be seen as a final order for purposes
of appeal or whether an appellate court would exercise its discretion to grant
leave to appeal. In addition, our opinion speaks only as to the ultimate outcome
of issues as a legal matter and does not address temporary
D-3D-13
<PAGE>
restraining orders, preliminary injunctions or similar orders pending
determination on the merits. Accordingly, we express no opinion as to whether a
court, in the exercise of its equitable powers, may temporarily restrain or
otherwise temporarily delay payment or other actions under the Documents. Also,
we express no opinion as to how long the Purchaser or the Trust (or Trustee)
might be denied possession of collections, instruments, or other interests in
the Mortgage Loans before resolution of the validity of an assertion that the
Mortgage Loans are part of the Seller's bankruptcy estate.
We further express no opinion herein with respect to (i) whether a court
would permit a bankruptcy trustee for the Seller (or the Seller as
debtor-in-possession) to use such collections as are in the possession of the
Seller without the consent of the Purchaser, Trust, Trustee or holders of
Certificates, either before deciding the merits as described above or pending
appeal after an adverse decision, or (ii) the effect of the failure of any of
the parties to the MPA to comply with the assumptions set forth herein, or (iii)
the effect of any characterization of the transfers as a fraudulent conveyance,
or (iv) the validity, status or nature of the Seller's property interest in the
Mortgage Loans other than the conveyance of the Seller's right, title and
interest in and to the Mortgage Loans.
This opinion letter addresses the legal consequences of only the facts
assumed to exist as stated in this opinion letter. The opinions expressed herein
are based on an analysis of existing laws and court decisions and cover certain
matters not directly addressed by such authorities. Such opinions may be
affected by actions taken or omitted, events occurring, or changes in the
relevant facts, after the date hereof. We express no opinion as to circumstances
or events that may occur subsequent to the date hereof which are or become
inconsistent with the factual assumptions stated in this opinion letter. We have
not undertaken to determine, or to inform any person of, the occurrence or
non-occurrence of any such actions, events or changes.
The opinions expressed herein are not a guaranty as to what any particular
court would actually hold, but an opinion as to the decision a court would reach
if the issues are properly presented to it and the court followed existing
precedent as to legal and equitable principles applicable in bankruptcy cases.
In this regard, we note that legal opinions on bankruptcy law matters
unavoidably have inherent limitations that generally do not exist in respect of
other issues on which opinions to third parties are typically given. These
inherent limitations exist primarily because of the pervasive equity powers of
bankruptcy courts, the overriding goal of reorganization to which other legal
rights and policies may be subordinated, the potential relevance to the exercise
of judicial discretion of future arising facts and circumstances, and the nature
of the bankruptcy process. The recipient of this opinion letter should take
these limitations into account in analyzing the bankruptcy risks associated with
the transactions described herein.
In connection with this opinion letter, we do not purport to be experts on,
or qualified to express legal conclusions based upon, the laws of any state or
jurisdiction other than the laws of the State of New York and the United States
of America and, accordingly, we express no opinion as to the laws of any other
state or jurisdiction.
This opinion letter is as of the date hereof and we undertake no obligation
to update this opinion letter or the opinions contained herein after the date
hereof. The opinions set
D-3D-14
<PAGE>
forth herein are expressly subject to there being no material change in the law
subsequent to the date hereof, and there being no additional facts of which we
are unaware that would materially affect the validity of the assumptions and
conclusions set forth herein or upon which such opinions are based.
This opinion letter is solely for the benefit of the addressees hereof in
their respective capacities under the Documents described herein. This opinion
letter may not be used or relied upon for any other purpose or by any other
person without our prior written consent.
Very truly yours,
D-3D-15
<PAGE>
SCHEDULE A ADDRESSEES
DLJ Commercial Mortgage Corp. Wells Fargo Bank Minnesota, N.A.
11 Madison Avenue 45 Broadway, 12th Floor
New York, New York 10010 New York, New York 10006
Donaldson, Lufkin & Jenrette Moody's Investors Services, Inc.
Securities Corporation 99 Church Street
11 Madison Avenue New York, New York 10007
New York, New York 10010
Fitch, Inc.
Prudential Securities Incorporated One State Street Plaza, 31st Floor
One New York Plaza, 18th Floor New York, New York 10004
New York, New York 10292-2018
McDonald Investments Inc.
Salomon Smith Barney Inc. 800 Superior Avenue
388 Greenwich Street, 11th Floor Cleveland, Ohio 44114
New York, New York 10013
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
D-3D-1
<PAGE>
EXHIBIT A
SELLER'S CERTIFICATE
(RE: OWNERSHIP CONVEYANCE OPINION)
This Certificate is delivered by the undersigned on behalf of Prudential
Mortgage Capital Funding, LLC, a Delaware limited liability (the "Seller") in
connection with the opinion letter of Winston & Strawn, dated November 7, 2000
addressing the characterization of the Seller's conveyances of certain Mortgage
Loans as sales or absolute assignments of beneficial ownership in the event of a
federal bankruptcy case involving the Seller as bankruptcy debtor (the
"Opinion"). All capitalized terms used in this Certificate and not specifically
defined herein have the meaning such terms would be given if used in the
Opinion, or if not defined in the Opinion, in the Mortgage Purchase Agreement
described in the Opinion (the "MPA"). Nothing contained herein shall be deemed
to constitute a conclusion of law. The undersigned represents and certifies that
he/she is a ______________ of the Seller, and further represents and certifies
with respect to the Seller as follows:
1. The factual statements contained in the Opinion under the heading "The
Transaction Facts" in so far as they relate to the Seller are true and correct
as of the date of this Certificate.
2. The undersigned has no reason to believe that any statement or fact
expressed in the Opinion under the heading "The Transaction Facts" is untrue,
inaccurate or incomplete.
3. I have been duly authorized to execute this Certificate on behalf of
the Seller.
[signature page follows]
D-3D-2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name. Dated:
November __, 2000
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By:__________________________________
Name: _______________________________
Title: ________________________________
D-3D-3
<PAGE>
EXHIBIT N
FORM OF UNION CAPITAL AGREEMENT
[See Attached]
N-1
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of October 27, 2000 (this
"Seller's Warranty Certificate"), is executed and delivered by Union Capital
Investments, LLC (the "Seller"), in favor of Column Financial, Inc. ("Column"),
its successors and assigns.
PRELIMINARY STATEMENT
The Seller and Column are parties to a Master Mortgage Loan Purchase
Agreement dated as of February 1, 1999 (the "Master Purchase Agreement"). The
mortgage loan or, if more than one, the mortgage loans (in either case, the
"Mortgage Loans") identified on the Mortgage Loan Schedule attached as Schedule
1 hereto have been previously sold by the Seller to Column pursuant to the
Master Purchase Agreement. Column intends to transfer the Mortgage Loans along
with certain mortgage loans originated by Column (the "Column Loans") to DLJ
Commercial Mortgage Corp. (the "Depositor") pursuant to a Mortgage Loan Purchase
and Sale Agreement (the "Column - Depositor Agreement"); and the Depositor in
turn intends to deposit the Mortgage Loans and the Column Loans, together with
certain other mortgage loans acquired by the Depositor from Prudential Mortgage
Capital Funding, LLC ("Prudential") and KeyBank National Association
("KeyBank"), into a trust fund to be evidenced by the Depositor's Commercial
Mortgage Pass-Through Certificates, Series 2000-CKP1 (the "Certificates"). The
Certificates will be issued on or about November 7, 2000 (the actual date of
issuance, the "Closing Date") pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), to be dated on or about November 1, 2000,
among the Depositor, Key Corporate Capital Inc. d/b/a Key Commercial Mortgage,
as master servicer and special sub-servicer, Midland Loan Services, Inc., as
special servicer, and Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"). The Seller agreed in the Master Purchase Agreement to make certain
representations and warranties, undertake certain repurchase obligations and
provide certain indemnification in connection with any sale of the Mortgage
Loans to a trust fund to be formed as part of a mortgage pass-through
transaction, and such agreement was partial consideration for the execution and
performance of the Master Purchase Agreement by Column. Capitalized terms used
but not defined herein shall have the respective meanings assigned to such terms
in the Master Purchase Agreement or, if not defined in the Master Purchase
Agreement, shall have the respective meanings assigned to such terms in the
Pooling and Servicing Agreement.
Pursuant to the terms of the Column - Depositor Agreement, Column shall
assign to the Depositor, among other things, all of Column's right, title and
interest in and to the Mortgage Loans and all of Column's rights under this
Seller's Warranty Certificate (except under Section 4 hereof); and pursuant to
the Pooling and Servicing Agreement, the Depositor shall assign to the Trustee,
for the benefit of the holders of the Certificates (the "Certificateholders"),
among other things, all of the Depositor's right, title and interest in and to
the Mortgage Loans and, to the extent assigned to it under the Column-Depositor
Agreement, all of the Depositor's rights under this Seller's Warranty
Certificate.
<PAGE>
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it shall
deliver to the Trustee as assignee of the Depositor (or, if so directed by
Column, to a custodian appointed by the Trustee (a "Custodian")), under the
Pooling and Servicing Agreement, all of the documents required in the Mortgage
Files, at the times and in the manner otherwise required by the Pooling and
Servicing Agreement, in each case to the extent the Seller has not delivered
such documents to Column prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Section 7.01 of the Master Purchase Agreement, the Seller hereby represents and
warrants as of the Closing Date to and for the benefit of Column, the Depositor,
their affiliates, the Trustee and the Certificateholders that (a) each of the
representations and warranties set forth in Sections 4.01 and 4.02 of the Master
Purchase Agreement is true and correct as if stated and made on the Closing Date
and (b) each Mortgage Loan bears interest at a rate that remains fixed
throughout the term of such Mortgage Loan. The Seller agrees that it shall be
deemed to make as of the date of substitution with respect to any Qualified
Substitute Mortgage Loan (as defined in the Pooling and Servicing Agreement)
that is substituted by the Seller for a Mortgage Loan in the manner set forth in
Section 3 hereof, to and for the benefit of Column, the Depositor, their
affiliates, the Trustee and the Certificateholders, each of the representations
and warranties set forth in Sections 4.01 and 4.02 of the Master Purchase
Agreement as if stated and made on the date of substitution, with any conforming
changes necessary due to the fact that such Qualified Substitute Mortgage Loan
was not purchased pursuant to the Master Purchase Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations of the
Seller. Each of the representations and warranties made pursuant to Section 2
shall survive the transfer of the Mortgage Loans by Column to the Depositor and
by the Depositor to the Trustee, for the benefit of the Certificateholders, and
shall inure to the benefit of Column and its successors and assigns (the
holder(s) of any Mortgage Loan or related REO Property, including, without
limitation, the Trustee for the benefit of the Certificateholders, being herein
referred to as the "Owner" thereof), notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or assignment of Mortgage or
Column's, the Depositor's or the Trustee's examination of any Mortgage File.
Upon discovery by either the Seller or the related Owner of a breach of any of
the representations and warranties made pursuant to Section 2 that materially
and adversely affects the value of any Mortgage Loan or related REO Property or
the interest of the related Owner therein (any such breach, a "Material
Breach"), the party discovering such breach shall give prompt written notice to
the other.
Within 60 days of the earlier of either discovery by or notice to the
Seller of any Material Breach (other than a Material Breach involving any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Purchase Agreement), the Seller shall use its best
efforts to cure such Material Breach in all material respects and, if such
Material Breach cannot be cured within such 60-day period, the Seller shall
repurchase the affected Mortgage Loan or REO Property at the applicable
Repurchase Price (as defined in the Master Purchase Agreement); provided,
however, that if the Seller's obligation to repurchase such affected Mortgage
Loan or REO Property as described above arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date, if the affected Mortgage Loan or REO Property is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulation Section 1.860G-
<PAGE>
2(f)), and if the affected Mortgage Loan or REO Property is then subject to the
Pooling and Servicing Agreement and is not a Mortgage Loan that (or an REO
Property related to a Mortgage Loan that) had been substituted for another
Mortgage Loan in the manner described hereinbelow, the Seller may, at its
option, in lieu of repurchasing such affected Mortgage Loan (but in any event no
later than such repurchase would have been required to be completed), (a)
replace such affected Mortgage Loan or REO Property with one or more Qualified
Substitute Mortgage Loans that are approved by Column and pay any corresponding
Substitution Shortfall Amount (as defined in the Pooling and Servicing
Agreement), such substitution and payment to be effected in accordance with, and
subject to, the terms of the Column-Depositor Agreement and the Pooling and
Servicing Agreement, and (b) deliver a certification to the Trustee to the
effect that such substitute mortgage loan satisfies or such substitute mortgage
loans satisfy, as the case may be, all of the requirements of the definition of
"Qualified Substitute Mortgage Loan" in the Pooling and Servicing Agreement. The
Seller may request that the related Owner extend the 60-day period referenced
above within which the Seller must cure, repurchase or replace a Mortgage Loan
or REO Property affected by such a Material Breach, to 90 or more days (but not
more than 150 days) following the earlier of either discovery by or notice to
the Seller of such Material Breach, by delivering a written request to the
related Owner, together with evidence that the Seller is diligently proceeding
to cure such breach and will require the requested extension to effect such
cure; provided, however, that the related Owner may determine to accept or deny
any such request in its sole discretion, without limitation. For purposes of
this section, no such request shall be deemed to have been accepted by the
related Owner unless the related Owner has affirmatively and expressly stated in
writing its acceptance of such request. If a Material Breach involves any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Purchase Agreement and such Material Breach cannot
be cured within ninety (90) days of the earlier of either discovery by or notice
to the Seller of such Material Breach, any or all of the Mortgage Loans and
related REO Properties shall, at the option of the related Owner, be repurchased
by the Seller at the applicable Repurchase Price(s) (with no option to
substitute). Any repurchase of Mortgage Loans or REO Properties or payment of
any Substitution Shortfall Amount pursuant to the foregoing provisions of this
Section 3 shall be accomplished by wire transfer of immediately available funds
in the amount of the Repurchase Price or Substitution Shortfall Amount, as
applicable, pursuant to wiring instructions furnished by the related Owner to
the Seller.
At the time of the repurchase of or substitution for any Mortgage Loan or
REO Property as contemplated by the preceding paragraph, the related Owner and
Seller shall arrange for the reassignment of such Mortgage Loan or the
conveyance of such REO Property, as the case may be, to the Seller and the
delivery to the Seller of any documents held by or on behalf of the related
Owner relating to such Mortgage Loan or REO Property, as the case may be. With
respect to each Mortgage Loan and REO Property to be repurchased or replaced as
contemplated by the preceding paragraph, at the time the Repurchase Price or
Substitution Shortfall Amount, as applicable, is wire transferred to or at the
direction of the related Owner, the Seller shall, simultaneously with the
initiation of such wire transfer, give written notice to the related Owner that
such wire transfer has been initiated.
In addition to such cure and repurchase or substitution obligation, the
Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and
<PAGE>
expenses incurred in connection with any claim, demand, defense, or assertion
based on or grounded upon, or resulting from, a breach by the Seller of the
representations and warranties made pursuant to Section 2 hereof. The
obligations of the Seller set forth in this Section 3 to cure or to repurchase
or replace a defective Mortgage Loan or REO Property and to indemnify the
related Owner as provided in this Section 3 constitute the sole remedies of the
related Owner respecting a breach of such representations and warranties made
pursuant to Section 2 hereof.
SECTION 4. Indemnification. The Seller will indemnify and hold harmless,
Column, its affiliates, and each Person, if any, who controls Column within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"; and all
of the foregoing Persons, collectively, the "DLJ Parties"), against any losses,
claims, damages or liabilities to which they may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (each, a "Liability") arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact provided by the Seller to any DLJ Party ("Seller Information")
which is contained in the prospectus supplement, private placement memorandum
and/or any other disclosure document or any amendment or supplement thereto
(each, an "Offering Document") relating to the offering of any securities
evidencing ownership interests in the Mortgage Loans or which arise out of or
are based upon any omission or alleged omission to state in such Offering
Document a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and will reimburse each DLJ Party for any legal or other
expenses reasonably incurred by such DLJ Party in connection with investigating
or defending any such Liability; provided, however, that the Seller shall not be
liable in any such case to the extent and only to the extent that any Liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in an Offering Document in reliance upon
and in conformity with information provided by or on behalf of any Person other
than the Seller. Column hereby agrees to indemnify the Seller for any Liability
arising out of or based upon Seller Information which is not accurately
reflected in any Offering Document.
(a) Promptly after receipt by a party with a right to indemnification under
this section (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against a party with an indemnification obligation under this section (the
"Indemnifying Party"), notify the Indemnifying Party of the commencement
thereof; but the omission so to notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability which it may have to any Indemnified
Party otherwise than under this section. In case any such action is brought
against an Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
Indemnified Party promptly after receiving the aforesaid notice from such
Indemnified Party, to assume the defense thereof, with counsel satisfactory to
such Indemnified Party; provided, however, that, if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party, and if the
Indemnified Party shall have reasonably considered that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Indemnifying Party, the Indemnified
Party or Parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party or Parties. Upon receipt of notice by such
Indemnified Party of the Indemnifying Party's election to so assume the defense
<PAGE>
of such action and approval by such Indemnified Party of counsel, the
Indemnifying Party will not be liable to such Indemnified Party under this
section for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel), (ii) the
Indemnifying Party shall not have employed counsel satisfactory to the
Indemnified Party within a reasonable period after notice of commencement of the
action or (iii) the Indemnifying Party has authorized the employment of counsel
for the Indemnified Party at the expense of the Indemnifying Party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in clause (i) or (iii).
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and Column on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and Column in such proportions that Column is responsible for its pro
rata portion of such losses, liabilities, claims, damages and expenses
determined in accordance with the ratio that the (i) difference between the
aggregate purchase price paid to the Seller by Column for the Mortgage Loans and
the aggregate resale price received by Column, bears to (ii) the aggregate
resale price received by Column, and the Seller shall be responsible for the
balance; provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this section, each of the other
DLJ Parties shall have the same rights to contribution as Column.
SECTION 5. Assignment of this Seller's Warranty Certificate. The rights and
obligations of the Seller under this Seller's Warranty Certificate may not be
assigned, pledged or hypothecated by the Seller without the consent of Column
and its successors and assigns; except that any Person into which the Seller may
be merged or consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Seller shall be a party, or any Person succeeding
to the business of the Seller, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. The
rights and obligations of Column under this Seller's Warranty Certificate may,
however, be assigned in whole or in part by Column and its successors and
assigns in connection with any transfer of one or more Mortgage Loans. Without
limiting the generality of the foregoing, the Seller hereby acknowledges and
approves the assignments contemplated in the Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary Provisions in
Master Purchase Agreement. This Seller's Warranty Certificate supersedes any
contrary provisions of the Master Purchase Agreement, and constitutes an
amendment of such contrary provisions, insofar as (but only insofar as) such
contrary provisions of the Master Purchase Agreement relate to the Mortgage
Loans. The rights and obligations of the Seller and Column under the Master
Purchase Agreement are otherwise unaffected, and the provisions of the Master
Purchase Agreement otherwise remain in full force and effect.
<PAGE>
SECTION 7. Description of the Seller. In connection with the offering of
the Certificates pursuant to the Offering Documents, the Seller authorizes the
inclusion in the Offering Documents of the description of the Seller, attached
as Exhibit A hereto, and hereby represents and warrants that such description
does not contain any material misstatements of fact.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed by its duly
authorized officer as of the date first above written.
UNION CAPITAL INVESTMENTS, LLC
By:
---------------------------------
Name:
Title:
Acknowledged and Accepted:
COLUMN FINANCIAL, INC.
By: __________________________________
Name:
Title:
<PAGE>
EXHIBIT A
Union Capital Investments LLC. Union Capital is a limited liability
company, with its principal office in Atlanta, Georgia. Union Capital is
primarily involved in conduit lending. It originates, underwrites and closes
first mortgage loans secured by all types of multifamily rental and commercial
real estate throughout the United States. The principals of Union Capital have
been involved in the conduit lending field since January 1993.
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Mortgage Loan Cut-Off
Number Property Name Date Balance
------ ------------- ------------
26 Regency Warehouse $11,609,943
70 Courtyard by Marriott Hotel $5,146,556
118 Winder Village Manufactured Housing Community $1,556,390
119 Russell Village Manufactured Housing Community $1,117,409
<PAGE>
O-1
EXHIBIT O
SCHEDULE OF DESIGNATED SUB-SERVICERS
Office Max-Northwood
Office Max-Alexandria
Larry's Market
Holy Cross Professional Center
Railway Express Building
Circle K Plaza
Pony Express Building
O-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT P
FORMAT AND FREQUENCY OF SERVICER REPORTS
Information Format Frequency
----------- ------ ---------
<S> <C> <C> <C>
Property Operating Statement Actual PDF/TIF As received
Property Rent Roll Actual PDF/TIF As received
Property Inspection Actual PDF/TIF As received
Property File (CMSA IRP) Access/Excel Monthly1
Loan Periodic Update File (CMSA IRP) Access/Excel Monthly1
Bond File (CMSA IRP) Access/Excel Monthly1
Collateral File (CMSA IRP) Access/Excel Monthly1
Servicer Supplemental File (CMSA IRP) Access/Excel Monthly1
Operating Statement Analysis Report (CMSA IRP) Access/Excel Quarterly
NOI Adjustment Worksheet (CMSA IRP) Access/Excel Quarterly
</TABLE>
1 As transmitted to the Trustee
P-1
