SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event
reported) June 30, 1997
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Credit Suisse First Boston Mortgage Securities Corp.
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(Exact Name of Registrant as Specified in Charter)
Delaware 333-25751 13-3320910
- ---------------------------- ------------- ------------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
Eleven Madison Avenue
New York, New York 10010
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(Address of Principal Executive
Offices and Zip Code)
Registrant's telephone number, including area code (212) 325-2000
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Item 5. Other Events
- ---- ------------
On June 30, 1997, Credit Suisse First Boston Mortgage Securities Corp.
(the "Company") executed a Pooling and Servicing Agreement dated as of June
1, 1997 (the "Pooling and Servicing Agreement") by and among the Company,
as depositor, First Union National Bank, as servicer (the "Servicer"), Lennar
Partners, Inc., as Special Servicer (the "Special Servicer"), and The Chase
Manhattan Bank, as trustee (the "Trustee"). The Pooling and Servicing
Agreement is annexed hereto as Exhibit 99.1.
Item 7. Financial Statements, Pro Forma Financial
-----------------------------------------
Information and Exhibits.
------------------------
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
99.1 The Pooling and Servicing Agreement, dated as of June 1, 1997, by
and among the Company, the Servicer, the Special Servicer and the
Trustee, providing for the issuance of Credit Suisse First
Boston Mortgage Securities Corp. Commerial Mortgage Pass-Through
Certificates, Series 1997-C1.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Allan J. Baum
-----------------------
Name: Allan J. Baum
Title: Vice President
Dated: July 15, 1997
Exhibit Index
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Exhibit Page
- ------- ----
99.1. Pooling and Servicing Agreement 5
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
FIRST UNION NATIONAL BANK,
Servicer
LENNAR PARTNERS, INC.,
Special Servicer
THE CHASE MANHATTAN BANK,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1997
$1,356,228,736
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
==============================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . . . . . 5
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SECTION 1.02. Certain Calculations . . . . . . . . . . . . . . . . 57
--------------------
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
---------------------------------
SECTION 2.01. Conveyance of Loans . . . . . . . . . . . . . . . . . 59
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SECTION 2.02. Acceptance by Trustee . . . . . . . . . . . . . . . . 61
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SECTION 2.03. Representations, Warranties and Covenants of the
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Depositor; Mortgage Loan Seller's Repurchase of Loans for
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Defects in Mortgage Files and Breaches of Representations
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and Warranties . . . . . . . . . . . . . . . . . . . . 63
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SECTION 2.04. Execution of Certificates . . . . . . . . . . . . . . 65
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ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
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SECTION 3.01. Servicer to Act as Servicer; Special Servicer to
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Act as Special Servicer; Administration of the Loans . . . . . . . . . . 66
- ----------------------------------------------------
SECTION 3.02. Collection of Loan Payments . . . . . . . . . . . . . 67
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SECTION 3.03. Collection of Taxes, Assessments and Similar
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Items; Servicing Accounts . . . . . . . . . . . . . . . . . . . . . . . . 68
- -------------------------
SECTION 3.04. The Certificate Account, Excess Interest
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Distribution Account and Distribution Account . . . . . . . . . . . . . . 71
- ---------------------------------------------
SECTION 3.05. Permitted Withdrawals from the Certificate
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Account and the Distribution Accounts . . . . . . . . . . . . . . . . . . 73
- -------------------------------------
SECTION 3.06. Investment of Funds in the Certificate Account,
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Servicing Accounts, Cash Collateral Accounts, the Excess
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Interest Distribution Account, the Interest Reserve Account
- -----------------------------------------------------------
and the REO Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
- -------------------
SECTION 3.07. Maintenance of Insurance Policies; Errors and
---------------------------------------------
Omissions and Fidelity Coverage . . . . . . . . . . . . . . . . . . . . . 79
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SECTION 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance
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Clauses; Assumption Agreements; Defeasance Provisions . . . . . . . . . . 83
- -----------------------------------------------------
SECTION 3.09. Realization upon Defaulted Loans . . . . . . . . . . 85
--------------------------------
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files . . . 88
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SECTION 3.11. Servicing Compensation . . . . . . . . . . . . . . . 89
----------------------
SECTION 3.12. Reports to the Trustee; Certificate Account
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Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
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SECTION 3.13. Annual Statement as to Compliance . . . . . . . . . . 96
---------------------------------
SECTION 3.14. Reports by Independent Public Accountants . . . . . . 97
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SECTION 3.15. Access to Certain Information . . . . . . . . . . . . 97
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SECTION 3.16. Title to REO Property; REO Account . . . . . . . . . 98
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SECTION 3.17. Management of REO Property . . . . . . . . . . . . . 99
--------------------------
SECTION 3.18. Sale of Defaulted Loans and REO Properties . . . . . 101
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SECTION 3.19. Additional Obligations of the Servicer and
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Special Servicer; Inspections . . . . . . . . . . . . . . . . . . . . . . 103
- -----------------------------
SECTION 3.20. Modifications, Waivers, Amendments and Consents . . . 106
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SECTION 3.21. Transfer of Servicing Between Servicer and
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Special Servicer; Record Keeping; Asset Status Report . . . . . . . . . . 109
- -----------------------------------------------------
SECTION 3.22. Sub-Servicing Agreements . . . . . . . . . . . . . . 112
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SECTION 3.23. Representations and Warranties of the Servicer . . . 114
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SECTION 3.24. Representations and Warranties of the Special
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Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
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SECTION 3.25. Duties of the Extension Advisor . . . . . . . . . . . 119
-------------------------------
SECTION 3.26. Extension Advisor; Elections . . . . . . . . . . . . 120
----------------------------
SECTION 3.27. Limitation on Liability of Extension Advisor . . . . 121
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SECTION 3.28. Reports to the Securities and Exchange
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Commission; Available Information . . . . . . . . . . . . . . . . . . . . 122
- ---------------------------------
SECTION 3.29. Lock-Box Accounts and Servicing Accounts. . . . . . . 125
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SECTION 3.30. Interest Reserve Account . . . . . . . . . . . . . . 125
------------------------
SECTION 3.31. Limitations on and Authorizations of the Servicer
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and Special Servicer with Respect to Certain Loans. . . . . . . . . . . . 126
- --------------------------------------------------
SECTION 3.32. REMIC Administration . . . . . . . . . . . . . . . . 128
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
------------------------------
SECTION 4.01. Distributions . . . . . . . . . . . . . . . . . . . . 132
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SECTION 4.02. Statements to Certificateholders; Reports by
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Trustee; Other Information Available to the Holders and
- -------------------------------------------------------
Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
- ------
SECTION 4.03. P&I Advances . . . . . . . . . . . . . . . . . . . . 146
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SECTION 4.04. Allocation of Collateral Support Deficit . . . . . . 148
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SECTION 4.05. Appraisal Reductions . . . . . . . . . . . . . . . . 149
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SECTION 4.06. Certificate Deferred Interest . . . . . . . . . . . . 150
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SECTION 4.07. Grantor Trust Reporting . . . . . . . . . . . . . . . 151
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ARTICLE V
THE CERTIFICATES
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SECTION 5.01. The Certificates. . . . . . . . . . . . . . . . . . . 152
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SECTION 5.02. Registration of Transfer and Exchange of
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Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
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SECTION 5.03. Book-Entry Certificates . . . . . . . . . . . . . . . 160
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates . . 163
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SECTION 5.05. Persons Deemed Owners . . . . . . . . . . . . . . . . 164
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ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
---------------------------------
SECTION 6.01. Liability of the Depositor, the Servicer and the
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Special Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
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SECTION 6.02. Merger, Consolidation or Conversion of the
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Depositor, the Servicer or the Special Servicer . . . . . . . . . . . . . 165
- -----------------------------------------------
SECTION 6.03. Limitation on Liability of the Depositor, the
---------------------------------------------
Servicer, the Special Servicer and Others . . . . . . . . . . . . . . . . 165
- -----------------------------------------
SECTION 6.04. Depositor, Servicer and Special Servicer Not to
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Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
- ------
SECTION 6.05. Rights of the Depositor in Respect of the
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Servicer and the Special Servicer . . . . . . . . . . . . . . . . . . . . 168
- ---------------------------------
ARTICLE VII
DEFAULT
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SECTION 7.01. Events of Default; Servicer and Special Servicer
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Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
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SECTION 7.02. Trustee to Act; Appointment of Successor . . . . . . 172
----------------------------------------
SECTION 7.03. Notification to Certificateholders . . . . . . . . . 173
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SECTION 7.04. Waiver of Events of Default . . . . . . . . . . . . . 174
---------------------------
SECTION 7.05. Trustee Advances . . . . . . . . . . . . . . . . . . 174
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ARTICLE VIII
CONCERNING THE TRUSTEE
----------------------
SECTION 8.01. Duties of Trustee . . . . . . . . . . . . . . . . . . 175
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SECTION 8.02. Certain Matters Affecting the Trustee . . . . . . . . 176
-------------------------------------
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
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Certificates or Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 178
- ---------------------
SECTION 8.04. Trustee May Own Certificates . . . . . . . . . . . . 178
----------------------------
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
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Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
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SECTION 8.06. Eligibility Requirements for Trustee . . . . . . . . 179
------------------------------------
SECTION 8.07. Resignation and Removal of the Trustee . . . . . . . 180
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SECTION 8.08. Successor Trustee . . . . . . . . . . . . . . . . . . 181
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SECTION 8.09. Merger or Consolidation of Trustee . . . . . . . . . 181
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee . . . . 182
---------------------------------------------
SECTION 8.11. Appointment of Custodians . . . . . . . . . . . . . . 183
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SECTION 8.12. Access to Certain Information . . . . . . . . . . . . 183
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SECTION 8.13. Representations and Warranties of the Trustee . . . . 185
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ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
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SECTION 9.01. Termination Upon Repurchase or Liquidation of All
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Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
- -----
SECTION 9.02. Additional Termination Requirements . . . . . . . . . 190
-----------------------------------
SECTION 9.03. Purchase of ARD Loans. . . . . . . . . . . . . . . . 191
----------------------
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.01. Amendment . . . . . . . . . . . . . . . . . . . . . . 192
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SECTION 10.02. Recordation of Agreement; Counterparts . . . . . . . 194
--------------------------------------
SECTION 10.03. Limitation on Rights of Certificateholders . . . . . 194
------------------------------------------
SECTION 10.04. Governing Law . . . . . . . . . . . . . . . . . . . . 195
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SECTION 10.05. Notices . . . . . . . . . . . . . . . . . . . . . . . 196
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SECTION 10.06. Severability of Provisions . . . . . . . . . . . . . 196
--------------------------
SECTION 10.07. Grant of a Security Interest . . . . . . . . . . . . 197
----------------------------
SECTION 10.08. Successors and Assigns; Beneficiaries . . . . . . . . 197
-------------------------------------
SECTION 10.09. Article and Section Headings . . . . . . . . . . . . 197
----------------------------
SECTION 10.10. Notices to the Rating Agencies . . . . . . . . . . . 197
------------------------------
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-X Certificate
Exhibit A-4 Form of Fixed Rate Subordinate Certificate
Exhibit A-5 Form of Adjustable Rate Subordinate Certificate
Exhibit A-6 Form of Class V-1 Certificate
Exhibit A-7 Form of Residual Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E (RESERVED)
Exhibit F Form of Request for Release
Exhibit G (RESERVED)
Exhibit H (RESERVED)
Exhibit I-1 Form of Comparative Financial Status Report
Exhibit I-2 Form of Delinquent Loan Status Report
Exhibit I-3 Form of Historical Loan Modification Report
Exhibit I-4 Form of Historical Loss Estimate Report
Exhibit I-5 Form of REO Status Report
Exhibit I-6 Form of Watch List
Exhibit I-7 Form of Operating Statement Analysis Report
Exhibit I-8 Form of NOI Adjustment Worksheet
Exhibit J (RESERVED)
Exhibit K Form of Lost Note Affidavit
This Pooling and Servicing Agreement (the "Agreement"), is dated and
---------
effective as of June 1, 1997, among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, First Union National Bank, as Servicer,
Lennar Partners, Inc., as Special Servicer, and The Chase Manhattan Bank, as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
------------
multiple classes (each, a "Class"), which in the aggregate will evidence
-----
the entire beneficial ownership interest in the trust fund (the "Trust
-----
Fund") to be created hereunder, the primary assets of which will be a pool
- ----
of 161 multifamily and commercial mortgage loans (the "Loans"). As
-----
provided herein, the Trustee shall elect or shall cause an election to be
made that each of the Upper-Tier REMIC and the Lower-Tier REMIC (as defined
herein) be treated for federal income tax purposes as a "real estate mortgage
investment conduit" (a "REMIC").
-----
The following table sets forth the designation, the initial pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal
-----------------
amount (the "Original Certificate Balance") or notional balance ("Original
----------------------------
Notional Balance"), as applicable, and the initial ratings given each
Class (as indicated below) by the Rating Agencies (as defined herein) for
each class of certificates comprising the interests in the Upper-Tier REMIC
created hereunder:
UPPER-TIER REMIC
<TABLE>
<CAPTION> Original
Certificate Balance
(or, in the case of the Class Initial
Class A-X Certificates, Original Ratings/(1)/
Designation Pass-Through Rate Notional Balance) Fitch/Moody's/S&P
<S> <C> <C> <C>
Class A-1A 6.90% $ 144,045,000 AAA/Aaa/AAA
Class A-1B 7.15% $ 190,936,000 AAA/Aaa/AAA
Class A-1C 7.24% $ 556,922,000 AAA/Aaa/AAA
Class A-2 7.26% $ 54,456,214 AAA/Aaa/AAA
Class B 7.28% $ 94,936,000 AA+/Aa2/NR
Class C 7.34% $ 67,812,000 A+/A2/NR
Class D 7.46% $ 61,030,000 BBB/Baa2/NR
Class E (2) $ 33,906,000 NR/Baa3/NR
Class F (2) $ 64,421,000 BB/NR/BB
Class G (2) $ 13,562,000 BB-/NR/BB-
Class H (2) $ 27,125,000 B/B2/B
Class I (2) $ 16,952,000 B-/B3/NR
Class J (2) $ 13,563,000 CCC/Caa2/NR
Class K (2) $ 13,562,522 NR/NR/NR
Class A-X (3) $1,356,228,736(4) AAA/Aaa/NR
Class R None(5) None(5) NA
</TABLE>
_______________
(1) The Certificates marked "NR" have not been rated by the applicable
Rating Agency.
(2) The Pass-Through Rates on the Class E, Class F, Class G, Class H, Class
I, Class J and Class K Certificates will equal the lesser of 7.50% and
the Combined Weighted Average Net Mortgage Rate.
(3) The Class A-X Pass-Through Rate, as defined herein.
(4) Original Notional Balance. The Class A-X Certificates will not have a
Certificate Balance and will not be entitled to receive distributions of
principal.
(5) The Class R Certificates will not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions
of Prepayment Premiums or Yield Maintenance Charges. Any General
Available Distribution Amount or Private Loan Available Distribution
Amount remaining in the Upper-Tier Distribution
Account, after all required distributions under this Agreement have been
made to each other Class of Certificates, will be distributed to the
Holders of the Class R Certificates.
The Class A-1A, Class A-1B, Class A-1C, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K and
Class A-X Certificates will evidence "regular interests" in the Upper-Tier
REMIC created hereunder. The sole Class of "residual interests" in the
Upper-Tier REMIC created hereunder will be evidenced by the Class R
Certificates. The Class LA-1A, Class LA-1B, Class LA-1C, Class LA-2,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class
LI, Class LJ and Class LK Uncertificated Interests will evidence "regular
interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC created hereunder will be
evidenced by the Class LR Certificates.
The following table sets forth the initial Lower-Tier Principal Amounts
and per annum rates of interest for the Uncertificated Lower-Tier Interests:
LOWER-TIER REMIC
<TABLE>
<CAPTION>Class Interest Rate Original Lower-Tier Principal
<S> <C> <C>
Class LA-1A (1) $144,045,000
Class LA-1B (1) $190,936,000
Class LA-1C (1) $559,922,000
Class LA-2 (1) $ 54,456,214
Class LB (1) $ 94,936,000
Class LC (1) $ 67,812,000
Class LD (1) $ 61,030,000
Class LE (1) $ 33,906,000
Class LF (1) $ 64,421,000
Class LG (1) $ 13,562,000
Class LH (1) $ 27,125,000
Class LI (1) $ 16,952,000
Class LJ (1) $ 13,563,000
Class LK (1) $ 13,562,522
Class LR None(2) None(2)
</TABLE>
- -------------------------------
(1) The interest rate of each of the indicated classes of
Uncertificated Lower-Tier Interests is the Combined Weighted
Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or
notional balance, do not bear interest and will not be
entitled to distributions of Prepayment Premiums or Yield
Maintenance Charges. Any General Available Distribution
Amount or Private Loan Available Distribution
Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount on each
Distribution Date shall be distributed to the Holders of the
Class LR Certificates.
The parties intend that the portion of the Trust Fund representing the
Excess Interest and the Excess Interest Distribution Account be treated as a
grantor trust under Subpart E of Part 1 of Subchapter J of Chapter 1 of
Subtitle A of the Code and that the Class V-1 Certificates represent
undivided beneficial interests in the portion of the Trust Fund consisting of
the Excess Interest and the Excess Interest Distribution Account.
As of close of business on the Cut-off Date (as defined herein), the
Loans had an aggregate principal balance, after application of all payments
of principal due on or before such date, whether or not received, equal to
$1,356,228,736.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.01. Defined Terms.
-------------
Whenever used in this Agreement the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"Accrued Certificate Interest Amount": With respect to each
-----------------------------------
Distribution Date and each Class of Regular Certificates, an amount equal to
interest for the related Interest Accrual Period at the Pass-Through Rate
applicable to such Class of Certificates for such Distribution Date, accrued
on the related Certificate Balance of such Class (or, in the case of the
Class A-X Certificates, on the Notional Balance thereof) immediately prior to
such Distribution Date, commencing in the month of the Closing Date. The
Accrued Certificate Interest Amount for each such Class shall be calculated
on the basis of a 360-day year composed of twelve 30-day months.
"Accountant's Statement": As defined in Section 3.14.
----------------------
"Acquisition Date": With respect to any REO Property, the first day
----------------
on which such REO Property is considered to be acquired by the Trust Fund and
the Lower-Tier REMIC within the meaning of Treasury Regulation Section 1.856-
6(b)(1), which is the first day on which the Lower-Tier REMIC is treated as
the owner of such REO Property for federal income tax purposes.
"Actual/Actual Loans": The Loans indicated by the term "Act/Act"
-------------------
under the column heading "Interest Calc." in the Mortgage Loan Schedule.
"Actual/360 Loans": The Loans indicated by the term "Act/360" under
----------------
the column heading "Interest Calc." in the Mortgage Loan Schedule.
"Advance": Any P&I Advance or Servicing Advance.
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"Adverse REMIC Event": As defined in Section 3.32.
-------------------
"Affiliate": With respect to any specified Person, any other Person
---------
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
-----
"Agreement": This Pooling and Servicing Agreement and all amendments
---------
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property,
---------------------
the portion of the principal amount of the related Loan allocated to such
Mortgaged Property in the applicable Mortgage or Loan Agreement.
"Annual Compliance Report": A report consisting of an annual
------------------------
statement of compliance required by Section 3.13 hereof and an annual report
of an Independent accountant required pursuant to Section 3.14 hereof.
"Anticipated Repayment Date": With respect to any ARD Loan,
--------------------------
designated as such on the Mortgage Loan Schedule, the date upon which such
ARD Loan starts to accrue interest at its Revised Rate.
"Appraisal": An appraisal prepared in accordance with 12 C.F.R.
---------
Section225.64 by an Appraiser selected by the Servicer or Special Servicer,
as applicable.
"Appraisal Reduction": For any Distribution Date and for any Loan as
-------------------
to which an Appraisal Reduction Event has occurred, an amount calculated by
the Special Servicer equal to the excess, if any, of (a) the Stated Principal
Balance of such Loan over (b) the excess of (i) 90% of the Appraised Value of
the related Mortgaged Property as determined (a) by one or more Appraisals
with respect to any Loan with an outstanding principal balance equal to or in
excess of $2,000,000 (the costs of which shall be paid by the Servicer as a
Servicing Advance) or (b) by an Appraisal (or an update of a prior Appraisal)
or an internal valuation performed by the Special Servicer with respect to
any Loan with an outstanding principal balance less than $2,000,000 over
(ii) the sum of (x) to the extent not previously advanced by the Servicer or
the Trustee, all unpaid interest on such Loan at a per annum rate equal to
its Mortgage Rate, (y) all unreimbursed Advances and interest thereon at the
Reimbursement Rate in respect of such Loan and (z) all currently due and
unpaid real estate taxes and assessments, Insurance Policy premiums, ground
rents and all other amounts due and unpaid with respect to such Loan, net of
any amounts currently escrowed for such amounts (which taxes, assessments,
premiums, ground rents and other amounts have not been subject to an Advance
by the Servicer or the Trustee and/or for which funds have not been
escrowed).
Notwithstanding anything herein to the contrary, the aggregate Appraisal
Reduction related to a Loan or the related REO Property will be reduced to
zero as of the date such Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date
--------------------------
and any Loan for which an Appraisal Reduction has been calculated, an amount
equal to the product of (i) the Reduction Rate for such Distribution Date and
(ii) the Appraisal Reduction with respect to such Loan.
"Appraisal Reduction Event": With respect to any Loan, the earliest
-------------------------
of (i) the third anniversary of the date on which the first extension of the
Maturity Date of such Loan becomes effective as a result of a modification of
such Loan by the Special Servicer pursuant to the terms hereof, which
extension does not decrease the aggregate amount of Monthly Payments on the
Loan, (ii) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Loan, (iii) the
date on which a reduction in the amount of Monthly Payments on such Loan, or
a change in any other material economic term of such Loan (other than an
extension of the Maturity Date), becomes effective as a result of a
modification of such Loan by the Special Servicer, (iv) 60 days after a
receiver has been appointed, (v) 60 days after a Mortgagor declares
bankruptcy and (vi) immediately after a Loan becomes an REO Loan; provided,
however, that an Appraisal Reduction Event shall not occur at any time when
-------- -------
the aggregate Certificate Balances of all Classes of Certificates (other
than the Class A Certificates) have been reduced to zero. The Special
Servicer shall notify the Servicer promptly upon the occurrence of any of
the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
---------------
appraised value thereof as determined by an Appraisal of the Mortgaged
Property securing such Loan.
"Appraiser": An Independent nationally recognized MAI, state
---------
certified organization with five years of experience in properties of like
kind and in the same geographic area.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
--------
Schedule.
"Asset Status Report": As defined in Section 3.21(e).
-------------------
"Assignment of Leases": With respect to any Mortgaged Property, any
--------------------
assignment of leases, rents and profits or similar instrument, executed by
the related Mortgagor, assigning to the related mortgagee all of the income,
rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed
or extended through the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
-------------------------
any Loan that is delinquent in respect of its Balloon Payment (including any
REO Loan as to which the Balloon Payment would have been past due), an amount
equal to the sum of (a) the principal portion of the Monthly Payment that
would have been due on such Loan on the related Due Date based on the
constant payment required by the related Note or the original amortization
schedule thereof (as calculated with interest at the related Mortgage Rate),
if applicable, assuming such Balloon Payment had not become due, after giving
effect to any modification of such Loan, and (b) interest on the Stated
Principal Balance of such Loan at the applicable Net Mortgage Rate (net of
interest at the Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act as
--------------------
Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": Either the General Available
-----------------------------
Distribution Amount or the Private Loan Available Distribution Amount, as the
case may be.
"Balloon Loan": Any Loan that by its original terms or by virtue of
------------
any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Loan and any date of
---------------
determination, the scheduled payment of principal due on the Maturity Date of
such Loan (less principal included in the applicable amortization schedule or
scheduled Monthly Payment).
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
---------------
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
----------------------
on any Loan and with respect to any of the Class A, Class B, Class C, Class D
and Class E Certificates, a fraction (a) whose numerator is the amount, if
any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds
(ii) the Yield Rate used in calculating the Yield Maintenance Charge with
respect to such Principal Prepayment and (b) whose denominator is the amount,
if any, by which the (i) Mortgage Rate on such Loan exceeds (ii) the Yield
Rate used in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment; provided, however, that under no circumstances shall
the Base Interest Fraction be greater than one, and provided further that if
such Yield Rate is greater than or equal to the lesser of (x) the Mortgage
Rate on such Loan and (y) the Pass-Through Rate described in clause (a)(i)
above, then the Base Interest Fraction shall equal zero.
"Book-Entry Certificate": Any Certificate registered in the name of
----------------------
the Depository or its nominee.
"Borrower": With respect to any Loan, any obligor or obligors on any
--------
related Note or Notes.
"Breach": As defined in Section 2.03(b).
------
"Business Day": Any day other than a Saturday, a Sunday or a day on
------------
which banking institutions in the State of Florida, New York or North
Carolina are authorized or obligated by law or executive order to remain
closed.
"Cash Collateral Account": With respect to any Loan that has a
-----------------------
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document, into which account or accounts the
Lock-Box Account monies are swept on a regular basis for the benefit of the
Trustee as successor to the Mortgage Loan Seller's interest in the Loans.
Any Cash Collateral Account shall be beneficially owned for federal income
tax purposes by the Person who is entitled to receive all reinvestment income
or gain thereon in accordance with the terms and provisions of the related
Loan and Section 3.06, which Person shall be taxed on all reinvestment income
or gain thereon. The Servicer shall be permitted to make withdrawals
therefrom solely for deposit into the Certificate Account. To the extent not
inconsistent with the terms of the related Loan, each such Cash Collateral
Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Loan, the
---------------------------------
cash collateral account agreement, if any, between the Originator and the
related Borrower, pursuant to which the related Cash Collateral Account, if
any, may have been established.
"CERCLA": The Comprehensive Environmental Response, Compensation and
------
Liability Act of 1980, as amended.
"Certificate": Any one of the Credit Suisse First Boston Mortgage
-----------
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 1997-
C1, as executed and delivered by the Certificate Registrar and authenticated
and delivered hereunder by the Authenticating Agent.
"Certificate Account": The custodial account or accounts created and
-------------------
maintained by the Servicer pursuant to Section 3.04(a) in the name of the
Trustee on behalf of the Certificateholders, into which the amounts set forth
in Section 3.04(a) shall be deposited directly, which account shall be
entitled "First Union National Bank, in trust for The Chase Manhattan Bank,
as Trustee for the benefit of Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1997-C1, Certificate Account". Any such account or accounts shall be an
Eligible Account and shall be part of the Lower-Tier REMIC.
"Certificate Balance": With respect to any Class of Regular
-------------------
Certificates (other than the Class A-X Certificates), (i) on or prior to the
first Distribution Date, an amount equal to the Original Certificate Balance
of such Class as specified in the Preliminary Statement hereto, and (ii) as
of any date of determination after the first Distribution Date, the
Certificate Balance of such Class on the Distribution Date immediately prior
to such date of determination (determined as adjusted pursuant to
Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
-----------------------------
respect to any Class of Certificates, the amount of Mortgage Deferred
Interest allocated to such Class pursuant to Section 4.06(a).
"Certificateholder" or "Holder": The Person in whose name a
----------------- ------
Certificate is registered in the Certificate Register, provided, however,
-------- -------
that solely for the purposes of giving any consent, approval or waiver
pursuant to this Agreement, any Certificate registered
in the name of the Servicer, the Special Servicer, the Depositor or any
Affiliate of any of them shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver has been obtained, if such
consent, approval or waiver sought from such party would in any way increase
its compensation or limit its obligations as Servicer, Special Servicer or
Depositor, as applicable, hereunder; provided, however, the
-------- -------
Servicer and Special Servicer shall be entitled to exercise such Voting
Rights with respect to any issue which could reasonably be believed to
adversely affect such party's compensation or increase its obligations or
liabilities hereunder; and provided further, however, that such
---------------- -------
restrictions will not apply to the exercise of the Special Servicer's rights
as a member of the Controlling Class. The Trustee shall be entitled to
request and conclusively rely upon a certificate of the Servicer, the Special
Servicer or the Depositor in determining whether a Certificate is registered
in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the
------- ------------------
rights of Certificate Owners as they may indirectly exercise such rights
through the Depository and the Depository Participants, except as otherwise
specified herein; provided, however, that the parties hereto
-------- -------
shall be required to recognize as a "Holder" or "Certificateholder" only
------ -----------------
the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the
-----------------
Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Register" and "Certificate Registrar": The register
-------------------- ---------------------
maintained and registrar appointed pursuant to Section 5.02.
"Class": With respect to any Certificates or Uncertificated Lower
-----
Tier Interests, all of the Certificates or Uncertificated Lower-Tier
Interests bearing the same alphabetical (and, if applicable, numerical)
Class designation.
"Class A Certificate": Any Class A-1A, Class A-1B, Class A-1C or
-------------------
Class A-2 Certificate.
"Class A-1 Certificate": Any Class A-1A, Class A-1B or Class A-1C
---------------------
Certificate.
"Class A-1 Payoff Date": The later of (i) the Distribution Date on
---------------------
which the Certificate Balance of the then last outstanding Class of Class A-1
Certificates has been reduced to zero and (ii) the Distribution Date on which
all Collateral Support Deficits previously allocated to the Class A-1
Certificates have been reimbursed in full.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
----------------------
on the face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1A Pass-Through Rate": 6.9600% per annum.
----------------------------
"Class A-1B Certificate": A Certificate designated as "Class A-1B"
----------------------
on the face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1B Pass-Through Rate": 7.1500% per annum.
----------------------------
"Class A-1C Certificate": A Certificate designated as "Class A-1C"
----------------------
on the face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1C Pass-Through Rate": 7.2400% per annum.
----------------------------
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
---------------------
the face thereof, substantially in the form of Exhibit A-2 hereto.
"Class A-2 Group 2 Interest Distributable Amount": As to any
-----------------------------------------------
Distribution Date, the difference between (i) the amount of interest accrued
at the Class A-2 Pass-Through Rate during the Interest Accrual Period on the
lesser of (x) the Certificate Balance of the Class A-2 Certificates as of
such Distribution Date and (y) the Stated Principal Balance of the Private
Loan as of the first day of the related Due Period and (ii) the sum of (1)
the allocable share of (x) the Uncovered Prepayment Interest Shortfalls, (y)
Trust Fund indemnification expenses incurred during the related Due Period
pursuant to Sections 6.02 or 8.05 and (z) Extension Advisor fees incurred
during the related Due Period and (2) any allocations to such Class of any
Certificate Deferred Interest, in each case relating to the Private Loan for
such Distribution Date.
"Class A-2 Pass-Through Rate": 7.2600% per annum.
---------------------------
"Class A-X Certificate": A Certificate designated as "Class A-X" on
---------------------
the face thereof, in the form of Exhibit A-10 hereto.
"Class A-X Group 1 Interest Distributable Amount": As to any
-----------------------------------------------
Distribution Date and the Class A-X Certificates, the Optimal Interest
Distribution Amount for such Class for such Distribution Date less the sum of
(i) the Class A-X Group 2 Interest Distributable Amount for such Distribution
Date and (ii) the Class A-X Group 2 Unpaid Interest Carry forward Amount, if
any, for such Distribution Date.
"Class A-X Group 2 Interest Distributable Amount": As to any
-----------------------------------------------
Distribution Date, (1) the amount, if any, by which (i) the amount of
interest accrued at the Net Mortgage Pass-Through Rate of the Private Loan
during the related Due Period on the lesser of (x) the Certificate Balance of
the Class A-2 Certificates as of such Distribution Date and (y) the Stated
Principal Balance of the Private Loan as of the first day of the related Due
Period exceeds (ii) the Class A-2 Group 2 Interest Distributable Amount for
the Class A-2
Certificates for such Distribution Date, reduced by (2) the allocable share
of (x) the Uncovered Prepayment Interest Shortfall Amount for such
Distribution Date and (y) Trust Fund indemnification expenses incurred during
the related Due Period pursuant to Sections 6.02 or 8.05, in each case
relating to the Private Loan for such Distribution Date.
"Class A-X Group 2 Unpaid Interest Carryforward Amount": As to the
-----------------------------------------------------
first Distribution Date, zero. As to any Distribution Date after the first
Distribution Date, the amount, if any, by which the sum of the Class A-X
Group 2 Interest Distributable Amount for the immediately preceding
Distribution Date and the Class A-X Group 2 Unpaid Interest Carryforward
Amount, if any, from such preceding Distribution Date exceeds the aggregate
amount distributed in respect of interest to the Class A-X Certificates on
such preceding Distribution Date from the General Available Distribution
Amount and the Private Loan Distribution Amount for such preceding
Distribution Date.
"Class A-X Pass-Through Rate": As to any Distribution Date, the per
---------------------------
annum rate, expressed as a percentage, obtained by dividing (i) the sum of
the products of (a) the principal balance of each class of Uncertificated
Lower-Tier Interests immediately prior to such Distribution Date and (b) the
related Component Rate for such Distribution Date by (ii) the sum of all such
principal balances.
"Class B Certificate": A Certificate designated as "Class B" on the
-------------------
face thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": 7.2800% per annum.
-------------------------
"Class C Certificate": A Certificate designated as "Class C" on the
-------------------
face thereof, in the form of Exhibit A-4 hereto.
"Class C Pass-Through Rate": 7.3400% per annum.
-------------------------
"Class D Certificate": A Certificate designated as "Class D" on the
-------------------
face thereof, in the form of Exhibit A-5 hereto.
"Class D Pass-Through Rate": 7.4600% per annum.
-------------------------
"Class E Certificate": A Certificate designated as "Class E" on the
-------------------
face thereof, in the form of Exhibit A-6 hereto.
"Class E Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class F Certificate": A Certificate designated as "Class F" on the
-------------------
face thereof, in the form of Exhibit A-7 hereto.
"Class F Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class G Certificate": A Certificate designated as "Class G" on the
-------------------
face thereof, in the form of Exhibit A-8 hereto.
"Class G Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class H Certificate": A Certificate designated as "Class H" on the
-------------------
face thereof, in the form of Exhibit A-9 hereto.
"Class H Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class I Certificate": A Certificate designated as "Class I" on the
-------------------
face thereof, in the form of Exhibit A-10 hereto.
"Class I Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class J Certificate": A Certificate designated as "Class J" on the
-------------------
face thereof, in the form of Exhibit A-11 hereto.
"Class J Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class K Certificate": A Certificate designated as "Class K" on the
-------------------
face thereof, in the form of Exhibit A-12 hereto.
"Class K Pass-Through Rate": As to any Distribution Date, a per
-------------------------
annum rate equal to the lesser of (i) 7.5000% per annum and (ii) the
Combined Weighted Average Net Mortgage Rate for such Distribution Date.
"Class LA-1A Uncertificated Interest": A regular interest in the
-----------------------------------
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-1B Uncertificated Interest": A regular interest in the
-----------------------------------
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-1C Uncertificated Interest": A regular interest in the
-----------------------------------
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in the
----------------------------------
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LI Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": A regular interest in the Lower
--------------------------------
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
--------------------
the face thereof, in the form of Exhibit A-12 hereto.
"Class R Certificate": A Certificate designated as "Class R" on the
-------------------
face thereof, in the form of Exhibit A-11 hereto.
"Class V-1 Certificate": A Certificate designated as "Class V-1" on
---------------------
the face thereof, in the form of Exhibit A-11 hereto. The V-1 Certificates
have no Pass-Through Rate, Certificate Balance or notional balance.
"Closing Date": June 30, 1997.
------------
"Code": The Internal Revenue Code of 1986, as amended from time to
----
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
--------------------------
"Combined Weighted Average Net Mortgage Rate": As to any
-------------------------------------------
Distribution Date, the average, as of such Distribution Date, of the Net
Mortgage Pass Through Rates of the Loans, weighted by the Stated Principal
Balances thereof.
"Commission": The Securities and Exchange Commission.
----------
"Comparative Financial Status Report": A report substantially
-----------------------------------
containing the information described in Exhibit I-1_ attached hereto, setting
forth, among other things, the occupancy, revenue, net operating income and
Debt Service Coverage Ratio for each Loan based on the most current financial
information received as of the Determination Date immediately preceding the
preparation of such report for each of the following three periods (to the
extent such information is available): (i) the most current available year
to date, (ii) the previous two full fiscal years and (iii) the "base year"
(representing the original analysis of information used as of the Cut-off
Date). For the purposes of the Servicer's production of any such report that
is required to state information for any period prior to the Cut-off Date,
the Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the Mortgage Loan Seller.
"Component Rate": As to each of the Class A-X Components, the rate
--------------
set forth below with respect thereto:
Class LA-1A Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class
A-1A Pass-Through Rate.
Class LA-1B Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class
A-1B Pass-Through Rate.
Class LA-1C Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class
A-1C Pass-Through Rate.
Class LA-2 Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class
A-2 Pass-Through Rate.
Class LB Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class B
Pass-Through Rate.
Class LC Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class C
Pass-Through Rate.
Class LD Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class D
Pass-Through Rate for such Distribution Date.
Class LE Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class E
Pass-Through Rate for such Distribution Date.
Class LF Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class F
Pass-Through Rate for such Distribution Date.
Class LG Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class G
Pass-Through Rate for such Distribution Date.
Class LH Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class H
Pass-Through Rate for such Distribution Date.
Class LI Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class I
Pass-Through Rate for such Distribution Date.
Class LJ Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution Date.
Class LK Component: The amount, if any, by which the Combined
Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class K
Pass-Through Rate for such Distribution Date.
"Controlling Class": As of any date of determination, the most
-----------------
subordinate Class of
Regular Certificates then outstanding that has a Certificate Balance at least
equal to 25% of the initial Certificate Balance of such Class (or, if no such
Class exists, the most subordinate Class then outstanding). For purposes of
determining, at any time, which Class is the Controlling Class, the
Certificate Balance of each Class shall be deemed to be reduced by the amount
allocated to such Class of any Appraisal Reductions relating to Loans as to
which Liquidation Proceeds or other final payment has not yet been received.
As of the Closing Date, the Controlling Class will be the Class K
Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
------------------------------------
Owner, if applicable) of a Certificate of the Controlling Class as certified
by the Certificate Registrar to the Trustee from time to time.
"Corporate Trust Office": The principal corporate trust office of
----------------------
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at The Chase Manhattan Bank, 450
West 33rd Street, 15th Floor, New York, New York 10001, Attention:
Structured Finance Services (MBS), Credit Suisse First Boston Mortgage
Securities Corp., Series 1997-C1 (telecopy number (212) 946-8191).
"Corrected Loan": Any Specially Serviced Loan that has become
--------------
current and remained current for three consecutive Monthly Payments (for such
purposes taking into account any modification or amendment of such Loan) and
as to which Loan the Special Servicer has returned servicing to the Servicer
pursuant to Section 3.21(a) (provided that no additional Servicing Transfer
Event was foreseeable in the reasonable judgment of the Special Servicer).
"Credit File": Any documents, other than documents required to be
-----------
part of the related Mortgage File, in the possession of the Servicer and
relating to the origination and servicing of any Loan.
"Credit Support Crossover Date": The Distribution Date on which (i)
-----------------------------
the Certificate Balance of the last outstanding Class of Subordinate
Certificates has been reduced to zero and (ii) the Certificate Balance of at
least one Class of Class A-1 Certificates is greater than zero.
"Crossed Loan": Any Loan which is cross-defaulted and cross
------------
collateralized with any other Loan.
"Custodian": A Person who is at any time appointed by the Trustee
---------
pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor or the Mortgage Loan Seller or an
Affiliate of either of them.
"Cut-off Date": June 11, 1997.
------------
"Cut-off Date Principal Balance": With respect to any Loan, the
------------------------------
outstanding
principal balance of such Loan as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not
received.
"Debt Service Coverage Ratio": With respect to any Loan for any
---------------------------
twelve-month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Loan during
such period; provided, however, that with respect to the Loans which
initially pay interest only, the related Monthly Payment will be calculated
(for purposes of this definition only) to include principal (based upon a 25-
year amortization schedule) and interest payments from origination.
"Default Interest": With respect to any Loan, interest accrued on
----------------
such Loan at the excess of (i) the related Default Rate over (ii) the sum of
the related Mortgage Rate and, if applicable, the related Excess Rate.
"Default Rate": With respect to each Loan, the per annum rate at
------------
which interest accrues on such Loan following any event of default on such
Loan, including a default in the payment of a Monthly Payment or a Balloon
Payment, as such rate is set forth on the Mortgage Loan Schedule.
"Defaulted Loan": A Mortgage Loan that is at least sixty days
--------------
delinquent in respect of its Monthly Payments or more than thirty days
delinquent in respect of its Balloon Payment, if any, such delinquency to be
determined in either case without giving effect to any grace period permitted
by the related Mortgage or Note and without regard to any acceleration of
payments under the related Mortgage and Note; provided, however, no Monthly
Payment (other than a Balloon Payment) shall be deemed delinquent if less
than ten dollars of all amounts due and payable on such Loan has not been
received.
"Defaulting Party": As defined in Section 7.01(b).
----------------
"Defect": As defined in Section 2.02(e).
------
"Deficient Valuation": With respect to any Loan, a valuation by a
-------------------
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding principal balance of the Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
----------------------
"Delinquent Loan Status Report": A report substantially containing
-----------------------------
the information described in Exhibit I-2 attached hereto, setting forth,
among other things, a list of those Loans that, as of the close of business
on the Determination Date immediately preceding the preparation of such
report, were delinquent one Due Period, delinquent two Due Periods,
delinquent three Due Periods or more, or current but specially serviced or
that were in foreclosure but were not REO Property.
"Denomination": As defined in Section 5.01(a).
------------
"Depositor": Credit Suisse First Boston Mortgage Securities Corp., a
---------
Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
----------
Depository hereafter named. The nominee of the initial Depository for
purposes of registering those Certificates that are to be Book-Entry
Certificates, is Cede & Co. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
----------------------
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
----------------
"Determination Date": With respect to any Distribution Date, the
------------------
12th day of the month in which such Distribution Date occurs, or if such 12th
day is not a Business Day, the immediately preceding Business Day.
"Directing Certificateholder": The Controlling
---------------------------
Class Certificateholder selected by the Holders of more than 50% of the
Percentage Interests in the Controlling Class, by Certificate Balance, as
certified by the Certificate Registrar from time to time; provided,
--------
however, that (i) absent such selection, or (ii) until a Directing
- -------
Certificateholder is so selected or (iii) upon receipt of a notice from the
Holders of more than 50% of the Percentage Interests in the Controlling
Class, by Certificate Balance, that a Directing Certificateholder is no
longer designated, the Controlling Class Certificateholder that beneficially
owns the largest aggregate Certificate Balance of the Controlling Class will
be the Directing Certificateholder.
"Directly Operate": 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, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Trust Fund other
than through an Independent Contractor; provided, however, that
-------- -------
the Trustee (or the Servicer or the Special Servicer on behalf of the
Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Servicer or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
-------------------------
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject
to tax and a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code and (v) any other Person so
designated by the Servicer based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Residual Certificate by such Person may cause
either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State"
------------- -----
and "international organization" shall have the meanings set forth in
--------------------------
Section 7701 of the Code or successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
---------------------
Account and the Lower-Tier Distribution Account.
"Distribution Date": The 20th day of any month, or if such 20th day
-----------------
is not a Business Day, the immediately succeeding Business Day, commencing in
July 1997.
"Distribution Date Statement": As defined in Section 4.02(a).
---------------------------
"Due Date": With respect to (i) any Loan on or prior to its Maturity
--------
Date, the day of the month set forth in the related Note on which each
Monthly Payment thereon is scheduled to be first due (without giving effect
to any grace period with respect to late Monthly Payments), (ii) any Loan
after the Maturity Date therefor, the day of the month set forth in the
related Note on which each Monthly Payment on such Loan had been scheduled to
be first due (without giving effect to any grace period with respect to late
Monthly Payments) and (iii) any REO Loan, the day of the month set forth in
the related Note on which each Monthly Payment on the related Loan had been
scheduled to be first due (without giving effect to any grace period with
respect to late Monthly Payments).
"Due Period": With respect to any Distribution Date, the period
----------
commencing on the 12th day of the month preceding the month in which such
Distribution Date occurs and ending on the 11th day of the month in which
such Distribution Date occurs. Notwithstanding the foregoing, in the event
that the last day of a Due Period is not a Business Day, any payments
received with respect to the Loans relating to such Due Period on the
Business Day immediately following such day shall be deemed to have been
received during such Due Period and not during any other Due Period.
"Eligible Account": Either (i) an account or accounts maintained with
----------------
a federal or state chartered depository institution or trust company the
long-term unsecured debt obligations of which are rated at least "AA" by
Fitch and S&P and "Aa2", by Moody's, if the deposits are to be held in such
account for more than 30 days or the short-term debt obligations of which
have a short-term rating of not less than "A-1" from S&P and "F-1+" from
Fitch (if rated by Fitch (or, if not rated by Fitch, such other account or
accounts with respect to which Fitch shall have confirmed in writing that the
then current rating assigned to any of the Certificates that are currently
being rated by Fitch will not be qualified, downgraded or withdrawn by reason
thereof)) if the deposits are to be held in such account for 30 days or less,
or such other account or accounts with respect to which each of the Rating
Agencies shall have confirmed in writing that the then current rating
assigned to any of the Certificates that are currently being rated by such
Rating Agency will not be qualified, downgraded or withdrawn by reason
thereof or (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federal- or state-chartered depository
institution or trust company that, in either case, has a combined capital and
surplus of at least $50,000,000 and has corporate trust powers, acting in its
fiduciary capacity, provided that any state-chartered depository institution
--------
or trust company is subject to regulation regarding fiduciary funds
substantially similar to 12 C.F.R. Section 9.10(b) or such other account or
accounts with respect to which each of the Rating Agencies shall have
confirmed in writing that the then current rating assigned to any of the
Certificates that are currently being rated by such Rating Agency will not be
qualified, downgraded or withdrawn by reason thereof. Eligible Accounts may
bear interest. No Eligible Account shall be evidenced by a certificate of
deposit, passbook or other similar instrument.
"Eligible Investor": A Qualified Institutional Buyer that is
-----------------
purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer
is being made in reliance on Rule 144A.
"Enhancement Policy Escrow Account": As defined in Section 4.03(f)(iii).
---------------------------------
"Environmental Assessment": A "Phase I assessment" as described in,
------------------------
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or
any successor provisions covering the same subject matter, in the case of
Specially Serviced Loan as to which the related Mortgaged Property is
multifamily property or (ii) the American Society for Testing and Materials
in the case of Specially Serviced Loan as to which the related Mortgaged
Property is a non-multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
-----
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d).
-----------------------
"Escrow Payment": Any payment received by the Servicer for the
--------------
account of any Mortgagor for application toward the payment of real estate
taxes, assessments, Insurance Policy premiums and similar items in respect of
the related Mortgaged Property, including amounts for deposit to any reserve
account.
"Event of Default": One or more of the events described in
----------------
Section 7.01(a).
"Excess Interest": With respect to each of the ARD Loans, interest
---------------
accrued on such Loan and allocable to the Excess Rate. The Excess Interest is
an asset of the Trust Fund, but shall not be an asset of the Lower-Tier REMIC
or the Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
------------------------------------
accounts created and maintained as a separate trust account or accounts by
the Trustee pursuant to Section 3.04(b), which shall be entitled "The Chase
Manhattan Bank, as Trustee, in trust for Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1, Excess Interest Distribution Account" and which
shall be an Eligible Account. The Excess Interest Distribution Account shall
not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Rate": With respect to each ARD Loan after the related
-----------
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate
over (ii) the applicable Mortgage Rate, each as set forth in the Mortgage
Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
------------
time to time.
"Exchange Act Report": A monthly Distribution Date Statement,
-------------------
Comparative Financial Status Report, Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report, REO
Status Report, Operating Statement Analysis, NOI Adjustment Worksheet, Watch
List, or report pursuant to Section 4.02(b) or Annual Compliance Report to be
filed with the Commission, under cover of the related form required by the
Exchange Act.
"Extension Advisor": As defined in Section 3.26(a).
-----------------
"FDIC": Federal Deposit Insurance Corporation or any successor.
----
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
-----
"Final Recovery Determination": A determination by the Special
----------------------------
Servicer with respect to any Defaulted Loan or REO Property (other than a
Loan or REO Property, as the case may be, that was purchased (i) by the
Mortgage Loan Seller pursuant to Section 7 of the Mortgage Loan Purchase
Agreement, (ii) by the Servicer or the Special Servicer pursuant to
Section 3.18(b), (iii) by the Holder of 100% of the Percentage Interests in
the Class LR Certificates pursuant to Section 9.03, or (iv) by the Mortgage
Loan Seller, the holders of more than 50% of the Percentage Interests in the
Controlling Class or the Servicer pursuant to Section 9.01) that there has
been a recovery of all Insurance and Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that, in the Special
Servicer's reasonable good faith judgment, exercised without regard to any
obligation of the Special Servicer to make payments from its own funds
pursuant to Section 3.07(b), will ultimately be recoverable.
"Fitch": Fitch Investors Service, L.P., and its successors in
-----
interest.
"FNMA": Federal National Mortgage Association or any successor
----
thereto.
"General Available Distribution Amount": With respect to any
-------------------------------------
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Loans (and any related REO
Properties) other than the Private Loan and on deposit in the Certificate
Account and the Lower-Tier Distribution Account as of the close of business
on the Business Day preceding the related Servicer Remittance Date, exclusive
of the following amounts:
(i) all Monthly Payments collected but due on a Due Date following the
end of the related Due Period;
(ii) all Principal Prepayments (together with any related payments of
interest allocable to the period following the Due Date for the
Private Loan during the related Due Period), Balloon Payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds and
other unscheduled recoveries received or deemed received subsequent
to the related Determination Date;
(iii) all amounts in the Certificate Account that are payable or
reimbursable to any Person from such account pursuant to
clauses (ii) through (xvii), inclusive, of Section 3.05(a);
(iv) all amounts in the Lower-Tier Distribution Account that are payable
or reimbursable to any Person from such account pursuant to clauses
(ii) through (iv), inclusive, of Section 3.05(b);
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) all amounts deposited in the Certificate Account or the Lower-Tier
Distribution Account, as the case may be, in error;
(vii) any interest or investment income on funds on deposit in the
Certificate Account, the Excess Interest Distribution Account,
the Interest Reserve Account, any Cash Collateral Account, any
Lock-Box Account, any Reserve Account or any REO Account or in
Permitted Investments in which such funds may be invested;
(viii) with respect to those Loans (other than the Private Loan) that
are Actual/360 Loans and any Distribution Date relating to
each Interest Accrual Period ending in each February or any
January in a year immediately preceding a year which is not a
leap year, an amount equal to one day of interest on the
Stated Principal Balance of such Loans as of the Due Date in
the month preceding the month in which such Distribution Date
occurs at the related Mortgage Rates to the extent such amount
is to be deposited in the Interest Reserve Account and held
for future distribution pursuant to Section 3.30; and
(ix) Excess Interest.
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred with respect to the Loans other than the Private
Loan from the REO Account to the Certificate Account for such Distribution
Date pursuant to Section 3.16(c); and
(c) the aggregate amount of any P&I Advances made in respect of the
Loans other than the Private Loan by the Servicer or the Trustee, as
applicable, for such Distribution Date pursuant to Section 4.03 or 7.05 (net
of the related Trustee Fee with respect to any such Loans as to which such
P&I Advances are made).
"General Principal Distribution Amount": As to any Distribution
-------------------------------------
Date, the sum of (i) the amount collected or otherwise received on or with
respect to principal of the Loans during the related Due Period and (ii) that
portion of the P&I Advance, if any, made in respect of principal of the Loans
with respect to such Distribution Date.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
-------------------
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including,
without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory," "usable
work in process" or similar classification which would, if classified as
unusable, be included in the foregoing definition.
"Historical Loan Modification Report": With respect to each Servicer
-----------------------------------
Remittance Date, a report containing all or substantially all the content
described in Exhibit I-3 attached hereto and setting forth, among other
things, those Loans which, as of the close of business on the Determination
Date immediately preceding the preparation of such report, have been modified
pursuant to this Agreement (i) during the related Due Period and (ii) since
the Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": With respect to each Servicer
-------------------------------
Remittance Date, a report substantially containing the information described
in Exhibit I-4 attached hereto and
setting forth, among other things, as of the close of business on the
Determination Date immediately preceding the preparation of such report, (i)
the aggregate amount of Liquidation Proceeds collected for the related Due
Period and, separately stated, historically and (ii) the amount of realized
losses occurring on the Loans during such Due Period, set forth on a
Loan-by-Loan basis.
"Hyatt Aruba Mortgage Loan": The mortgage loan secured by a mortgage
-------------------------
on the Hyatt Regency Aruba, a hotel and casino located in the country of
Aruba.
"Independent": When used with respect to any specified Person, any
-----------
such Person that (i) is in fact independent of the Depositor, the Servicer,
the Special Servicer and any and all Affiliates thereof, (ii) does not have
any material direct financial interest in or any material indirect financial
interest in any of the Depositor, the Servicer, the Special Servicer or any
Affiliate thereof and (iii) is not connected with the Depositor, the
Servicer, the Special Servicer or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not
-------- -------
fail to be Independent of the Depositor, the Servicer, the Special Servicer
or any Affiliate thereof merely because such Person is the beneficial owner
of 1% or less of any Class of debt or equity securities issued by the
Depositor, the Servicer, the Special Servicer or any Affiliate thereof, as
the case may be.
"Independent Contractor": Either (i) any Person that would be an
----------------------
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Servicer or the Trust, delivered to the Trustee
and the Servicer), so long as the Trust Fund does not receive or derive any
income from such Person and provided that the relationship between such
Person and the Trust Fund is at arm's length, all within the meaning of
Treasury Regulation Section 1.856-4(b)(5) (except that the Servicer or the
Special Servicer shall not be considered to be an Independent Contractor
under the definition in this clause (i) unless an Opinion of Counsel has been
delivered to the Trustee to that effect) or (ii) any other Person (including
the Servicer and the Special Servicer) upon receipt by the Trustee and the
Servicer of an Opinion of Counsel, which shall be at no expense to the
Trustee, the Servicer or the Trust Fund, 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 Purchaser": Credit Suisse First Boston Corporation, as
-----------------
initial purchaser of the Class A-2 and Class A-X Certificates and the
Subordinate Certificates.
"Insurance Policy": With respect to any Loan, any hazard insurance
----------------
policy, flood insurance policy, title policy or other insurance policy that
is maintained from time to time in respect of such Loan or the related
Mortgaged Property.
"Insurance and Condemnation Proceeds": All proceeds paid under any
-----------------------------------
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not
applied to the restoration of the related Mortgaged Property or released to
the Mortgagor, in either case, in accordance with the Servicing Standards.
"Interest Accrual Period": With respect to any Class of Regular
-----------------------
Certificates or Uncertificated Lower-Tier Interests and any Distribution
Date, the calendar month preceding the month in which such Distribution Date
occurs, which calendar month shall be deemed for purposes of this definition
to consist of 30 days.
"Interest Reserve Account": The account created and maintained by
------------------------
the Servicer pursuant to Section 3.30, which shall be entitled "First Union
National Bank, in trust for The Chase Manhattan Bank, as Trustee, in trust
for Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1997-C1, Interest
Reserve Account" and which shall be an Eligible Account.
"Interest Shortfall Amount": As to any Distribution Date and any
-------------------------
Class of Regular Certificates, the amount, if any, by which the amount
distributed on such Class on such Distribution Date in respect of interest is
less than the related Optimal Interest Distribution Amount.
"Interested Person": The Depositor, the Servicer, the Special
-----------------
Servicer, any Independent Contractor engaged by the Special Servicer, any
Holder of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
------------------
"Investment Representation Letter": As defined in Section 5.02(b).
--------------------------------
"Issue Price": With respect to each Class of Certificates, the
-----------
"issue price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Loan, all amounts received
----------------
thereon during any Due Period, whether as payments, Insurance and
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent
late payments or collections of principal or interest due in respect of such
Loan (without regard to any acceleration of amounts due thereunder by reason
of default) on a Due Date in a previous Due Period and not previously
received. With respect to any REO Loan, all amounts received in connection
with the related REO Property during any Due Period, whether as Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in
respect of such REO Loan or the predecessor Loan (without regard to any
acceleration of amounts due under the predecessor Loan by reason of default)
on a Due Date in a previous Due Period and not previously received. The term
"Late Collections" shall specifically exclude Penalty Charges.
"Liquidation Event": With respect to any Loan, any of the following
-----------------
events: (i) payment in full of such Loan; (ii) the making of a Final
Recovery Determination with respect to such Loan; (iii) the repurchase of
such Loan by the Mortgage Loan Seller pursuant to Section 7 of the Mortgage
Loan Purchase Agreement; (iv) the purchase of such Loan by the Servicer or
the Special Servicer pursuant to Section 3.18(b); (v) the purchase of any ARD
Loan by the Holder of 100% of the Percentage Interests in the Class LR
Certificates pursuant to Section 9.03, or (vi) the purchase of such Loan by
the Mortgage Loan Seller, the Holders of more than 50% of the Percentage
Interests in the Controlling Class or the Servicer pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
---------------
respect to each Specially Serviced Loan as to which the Special Servicer
receives a full or discounted payoff with respect thereto from the related
Mortgagor or any Liquidation Proceeds with respect thereto, equal to the
product of the Liquidation Fee Rate and the proceeds of such full or
discounted payoff or the net Liquidation Proceeds (net of the related costs
and expenses associated with the related liquidation) related to such
liquidated Specially Serviced Loan, as the case may be; provided,
--------
however, that no Liquidation Fee shall be payable with respect to clauses
- -------
(iii) (but only as it relates to a sale to the Servicer or Special Servicer),
(iv), (v) and (vi) of the definition of Liquidation Proceeds.
"Liquidation Fee Rate": as defined in Section 3.11.
--------------------
"Liquidation Proceeds": Cash amounts (other than Insurance and
--------------------
Condemnation Proceeds and REO Revenues) received or paid by the Servicer in
connection with: (i) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Loan, through trustee's
sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor;
(iii) the purchase of a Defaulted Loan by the Servicer or the Special
Servicer pursuant to Section 3.18(b) or any other sale thereof pursuant to
Section 3.18(c); (iv) the repurchase of a Loan by the Mortgage Loan Seller
pursuant to Section 7 of the Mortgage Loan Purchase Agreement; (v) the
purchase of such Loan by the Holder of 100% of the Percentage Interests in
the Class LR Certificates pursuant to Section 9.03, or (vi) the purchase of
all Loans by the Mortgage Loan Seller, Holders of more than 50% of the
Percentage Interests in the Controlling Class or the Servicer pursuant to
Section 9.01.
"Loan": Each of the mortgage loans (including the Private Loan)
----
transferred and assigned to the Trustee pursuant to Section 2.01, and from
time to time held in the Trust Fund, including any Loan which becomes a
Specially Serviced Loan. As used herein, the term "Loan" includes the
related Note, Mortgage and other documents contained in the related Mortgage
File and any related agreements.
"Loan Agreement": With respect to any Loan, the loan agreement, if
--------------
any, between the Originator and the Borrower, pursuant to which such Loan was
made.
"Loan-to-Value Ratio": With respect to any Loan, as of any date of
-------------------
determination, the fraction, expressed as a percentage, the numerator of
which is the scheduled principal balance of such Loan at the time of
determination and the denominator of which is the Original Value of the
related Mortgaged Property.
"Lock-Box Account": With respect to any Mortgaged Property, if
----------------
applicable, any account created pursuant to any documents relating to a Loan
to receive revenues therefrom. Any Lock-Box Account shall be beneficially
owned for federal income tax purposes by the Person who is entitled to
receive the reinvestment income or gain thereon in accordance with the terms
and provisions of the related Loan and Section 3.06, which Person shall be
taxed on all reinvestment income or gain thereon. The Servicer shall be
permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Accounts.
"Lock-Box Agreement": With respect to any Loan, the lock-box
------------------
agreement, if any, between the Originator or the Mortgage Loan Seller and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have
been established.
"Lower-Tier Distribution Account": 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 "The Chase
Manhattan Bank, as Trustee, in trust for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-
Through Certificates, Series 1997-C1, Lower-Tier Distribution Account". Any
such account or accounts shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
------------------------------
"Lower-Tier Principal Amount": With respect to any Class of
---------------------------
Uncertificated Lower-Tier Interests, (i) on or prior to the first
Distribution Date, an amount equal to the Original Lower-Tier Principal
Amount of such Class as specified in the Preliminary Statement hereto,
and (ii) as of any date of determination after the first Distribution Date,
an amount equal to the Certificate Balance of the Class of Related
Certificates on the Distribution Date immediately prior to such date of
determination (determined as adjusted pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
----------------
Fund, the assets of which consist of the Loans, any REO Property with respect
thereto, such amounts as shall from time to time be held in the Certificate
Account, the REO Account, if any, and the Lower-Tier Distribution Account,
and except as otherwise provided in this Agreement, all other property
included in the Trust Fund that is not in the Upper-Tier REMIC.
"MAI": Member of the Appraisal Institute.
---
"Management Agreement": With respect to any Loan, the Management
--------------------
Agreement, if any, by and between the Manager and the related Borrower, or
any successor Management Agreement between such parties.
"Manager": With respect to any Loan, any property manager for the
-------
related Mortgaged Property or Properties.
"Maturity Date": With respect to any Loan as of any date of
-------------
determination, the date on which the last payment of principal is due and
payable under the related Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Loan by reason of
default thereunder, (ii) any grace period permitted by the related Note, or
(iii) any modification, waiver or amendment of such Loan granted or agreed to
by the Servicer or the Special Servicer pursuant to Section 3.20 occurring
prior to such date of determination.
"Monthly Interest Distributable Amount": As to any Distribution Date
-------------------------------------
and any Class of Regular Certificates other than the Class A-X Certificates,
the Accrued Certificate Interest Amount for such Class for such Distribution
Date, reduced by (i) such Class's share of (x) the Uncovered Prepayment
Interest Shortfall Amount for such Distribution Date, (y) Trust Fund
indemnification expenses incurred during the related Due Period pursuant to
Sections 6.02 or 8.05 and (z) Extension Advisor fees incurred during the
related Due Period and (ii) any allocations to such Class of any Certificate
Deferred Interest for such Distribution Date. As to any Distribution Date and
the Class A-X Certificates, the Accrued Certificate Interest Amount for such
Class for such Distribution Date, reduced by such Class's share of (x) the
Uncovered Prepayment Interest Shortfall Amount for such Distribution Date and
(y) Trust Fund indemnification expenses incurred during the related Due
Period pursuant to Sections 6.02 or 8.05.
"Monthly Payment": With respect to any Loan, the scheduled monthly
---------------
payment of principal and/or interest on such Loan, excluding any Balloon
Payment, which is payable by
a Mortgagor under the related Note and applicable law, without regard to any
acceleration of principal of such Loan by reason of default thereunder or any
modification, waiver or amendment of such Loan granted or agreed to by the
Servicer or the Special Servicer pursuant to Section 3.20.
"Moody's": Moody's Investors Service, Inc., and its successors in
-------
interest.
"Mortgage": With respect to any Loan, the mortgage, deed of trust,
--------
deed to secure debt or other instrument securing a Note and creating a lien
on the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Loan as of any Due
--------------------------
Date that has been modified to reduce the rate at which interest is paid
currently below the related Mortgage Rate and with respect to which the
amount of interest that accrues at a rate equal to the amount of such
reduction is capitalized, the excess, if any, of (a) interest accrued on the
Stated Principal Balance thereof during the related Mortgage Interest Accrual
Period set forth in the related Note at such Mortgage Rate over (b) the
interest portion of the related Monthly Payment or, if applicable, Assumed
Scheduled Payment due on such Due Date (where, for purposes of this clause (b)
only, the Mortgage Rate used to calculate such Monthly Payment or Assumed
Scheduled Payment is assumed to have been reduced to reflect such
modification).
"Mortgage File": With respect to any Loan, collectively the
-------------
following documents:
(i) except in the case of Loan No. 12, as to which a lost note
affidavit has been delivered in lieu of a Note, the original Note,
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from
the originator of the Loan to the Mortgage Loan Seller, and further
endorsed (at the direction of the Depositor given pursuant to the
Mortgage Loan Purchase Agreement) by the Mortgage Loan Seller, on its
face or by allonge attached thereto, without recourse, to the order of
the Trustee in the following form: "Pay to the order of The Chase
Manhattan Bank, as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1, without recourse, representation or
warranty, express or implied";
(ii) a duplicate original Mortgage or, if such Mortgage has been
returned by the related recording office, an original or a copy of a
certified copy thereof from the applicable recording office and
originals (or original or copies of certified copies from the applicable
recording office) of any assignments thereof showing a complete chain of
assignment from the related Originator to the Mortgage Loan Seller, in
each case with evidence of recording indicated thereon;
(iii) an original (or a copy if the original has been sent by the
Servicer for recordation) assignment of the Mortgage, in recordable
form, from the Mortgage Loan Seller to "The Chase Manhattan Bank, as
trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1997-C1";
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the originator of the Loan to the Mortgage Loan Seller, in each
case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), from the
Mortgage Loan Seller to "The Chase Manhattan Bank, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 1997-C1";
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the originator of the Loan to the Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
from the Mortgage Loan Seller to "The Chase Manhattan Bank, as trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1997-C1";
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon, where appropriate, in those instances where the terms or
provisions of the Mortgage, Note or any related security document have
been modified or the Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgagor's fee interest in the
Mortgaged Property, or if the policy has not yet been issued, a written
commitment or interim binder, dated as of the date the related Loan was
funded;
(x) certified copies of the original or copy of any guaranty of
the obligations of the Mortgagor under the Loan;
(xi) certified copies of all UCC Financing Statements and
continuation statements or copies thereof sufficient to perfect (and
maintain the perfection of) the security interest held by the originator
of the Loan (and each assignee prior to the
Trustee) in and to the personalty of the Mortgagor at the Mortgaged
Property (in each case with evidence of filing thereon), and to transfer
such security interest to the Trustee;
(xii) the original power of attorney (with evidence of recording
thereon) granted by the Mortgagor if the Mortgage, Note or other
document or instrument referred to above was not signed by the
Mortgagor;
(xiii) With respect to any debt of a Borrower permitted under the
related Loan, a subordination agreement, standstill agreement or other
intercreditor agreement relating to such other debt, if any;
(xiv) if any related Lock-Box Agreement or Cash Collateral
Agreement is separate from the Mortgage or Loan Agreement, a copy
thereof; with respect to the Cash Collateral Accounts and Lock-Box
Accounts, if any, a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the Mortgage Loan Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and all
funds contained therein (and UCC-2 or UCC-3 financing statements
assigning such security interest to the Trustee on behalf of the
Certificateholders);
(xv) any Loan Agreement; and
(xvi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided, however, that whenever the term "Mortgage File" is used to refer
- -------- -------
to documents actually received by the Trustee, or a Custodian appointed
thereby, such term shall not be deemed to include such documents and
instruments required to be included therein unless they are actually so
received.
"Mortgage Interest Accrual Period": The period during which interest
--------------------------------
accrues pursuant to the related Note.
"Mortgage Loan Purchase Agreement": The agreement between the
--------------------------------
Depositor and the Mortgage Loan Seller, dated as of June 11, 1997, relating
to the transfer of all of the Mortgage Loan Seller's right, title and
interest in and to the Loans.
"Mortgage Loan Schedule": The list of Loans transferred on the
----------------------
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to
each Loan:
(i) the loan number (as specified in Annex A to the
Prospectus);
(ii) the Mortgagor's name and property name;
(iii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iv) the Mortgage Rate in effect at the Cut-off Date;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining term
to stated maturity, (c) Maturity Date and (d) with respect to each ARD
Loan, the Anticipated Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) the Original Value of the related Mortgaged Property;
(xii) the Loan-to-Value Ratio at the Cut-off Date;
(xiii) the Loan interest accrual method;
(xiv) the Underwritten Debt Service Coverage Ratio;
(xv) the applicable Seller-Servicer Fee Rate, if any;
(xvi) Due Date;
(xvii) whether such loan is an ARD Loan;
(xviii) whether the Loan provides for the establishment of a Lock-
Box Account as of the Cut-off Date and, if so, the type of Lock-Box
Account;
(xix) whether the Loan is subject to defeasance;
(xx) whether such Loan incorporates a ground lease; and
(xxi) the property type.
Such Mortgage Loan Schedule shall also set forth the aggregate of the
amounts described under clause (vii) above for all of the Loans. Such list
may be in the form of more than one list, collectively setting forth all of
the information required.
"Mortgage Loan Seller": Credit Suisse First Boston Mortgage Capital
--------------------
LLC, a limited liability company and its successors in interest.
"Mortgage Pass-Through Rate": With respect to any Loan that provides
--------------------------
for calculations of interest based on a 360-day year composed of twelve
months of 30 days each for any Mortgage Interest Accrual Period, the Net
Mortgage Rate thereof (plus, with respect to any such Loan that provides
that the related Borrower will separately pay the Servicing Fee, 0.05% per
annum). With respect to the Private Loan and any Loan that provides for
calculations of interest based on a 360-day year and the actual number of
days elapsed (a) for any Mortgage Interest Accrual Period relating to an
Interest Accrual Period occurring in any January, February, April, June,
September and November and any December occurring in a year immediately
preceding any year that is not a leap year, the Net Mortgage Rate thereof
(plus, with respect to any such Loan that provides that the related Borrower
will separately pay the Servicing Fee, 0.05% per annum) or (b) for any
Mortgage Interest Accrual Period relating to any Interest Accrual Period
occurring in any March, May, July, August and October and any December
occurring in a year immediately preceding a year that is a leap year, the
Net Mortgage Rate thereof (plus, with respect to any such Loan that provides
that the related Borrower will separately pay the Servicing Fee, 0.05% per
annum), in each case multiplied by a fraction whose numerator is 31 and
whose denominator is 30. With respect to any Loan that provides for
calculations of interest based on the actual number of days elapsed in the
related Mortgage Interest Accrual Period and the actual number of days elapsed
in the related calendar year, the Net Mortgage Rate thereof multiplied by a
fraction whose numerator is twelve times the actual number of days in such
Mortgage Interest Accrual Period and whose denominator is the actual number
of days in such calendar year.
"Mortgage Rate": With respect to: (i) any Loan on or prior to its
-------------
Maturity Date, the annual rate at which interest is scheduled (in the absence
of a default) to accrue on such Loan from time to time in accordance with the
related Note and applicable law; (ii) any Loan after its Maturity Date, the
annualized rate described in clause (i) above determined without regard to
the passage of such Maturity Date; and (iii) any REO Loan, the annualized
rate described in clause (i) or (ii), as applicable, above, determined as if
the predecessor Loan had remained outstanding. The Mortgage Rate for
purposes of calculating Mortgage Pass-Through Rates and the Combined Weighted
Average Net Mortgage Rate will be the Mortgage Rate of such Loan without
taking into account any reduction in the interest rate by a bankruptcy court
pursuant to a plan of reorganization or pursuant to any of its equitable
powers or any reduction in the interest rate resulting from a work-out.
"Mortgaged Property": The underlying real property (including any
------------------
REO Property) that secures a Loan, in each case consisting of a parcel or
parcels of land improved by a commercial and/or multifamily building or
facility, together with any personal property,
fixtures, leases and other property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Note, including, without
---------
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Note.
"Net Investment Earnings": With respect to any of the Certificate
-----------------------
Account, the Excess Interest Distribution Account, any Lock-Box Account, any
Cash Collateral Account, the Interest Reserve Account, any Servicing Account
or the REO Account for any period from any Distribution Date to the
immediately succeeding P&I Advance Date, the amount, if any, by which the
aggregate of all interest and other income realized during such period on
funds relating to the Trust Fund held in such account exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Certificate
-------------------
Account, the Excess Interest Distribution Account, any Lock-Box Account, any
Cash Collateral Account, the Interest Reserve Account, any Servicing Account
or the REO Account for any period from any Distribution Date to the
immediately succeeding P&I Advance Date, the amount, if any, by which the
aggregate of all losses, if any, incurred during such period in connection
with the investment of funds relating to the Trust Fund held in such account
in accordance with Section 3.06 exceeds the aggregate of all interest and
other income realized during such period on such funds.
"Net Mortgage Pass-Through Rate": With respect to any Loan and any
------------------------------
Distribution Date, the Mortgage Pass-Through Rate for such Loan for the
related Interest Accrual Period minus the sum of the Servicing Fee Rate and
the Trustee Fee Rate.
"Net Mortgage Rate": With respect to any Loan or REO Loan, as of any
-----------------
date of determination, a per annum rate equal to the Mortgage Rate for such
Loan as of the Cut-off Date minus the Seller-Servicer Fee Rate, if any, or,
with respect to the Private Loan, the Mortgage Rate thereof minus 25 basis
points per annum.
"Net Operating Income": With respect to any Mortgaged Property, for
--------------------
any Mortgagor's fiscal year end, the total operating revenues derived from
such Mortgaged Property during such period, minus the total operating
expenses incurred in respect of such Mortgaged Property during such period
and capital expenditure reserves, other than (i) non-cash items such as
depreciation, (ii) amortization, (iii) actual capital expenditures and
(iv) debt service on the related Loan.
"New Lease": Any lease of REO Property entered into at the direction
---------
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust Fund has the right
to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
------------------------
Special Servicer, as the case may be, substantially in the form of Exhibit I-
8 attached hereto, presenting the computations made in accordance with the
methodology described in said Exhibit I-8 to "normalize" the full year net
operating income and debt service coverage numbers used in the other reports
required by this Agreement, sent to the Trustee with each annual operating
statement for a Mortgaged Property pursuant to Section 3.12.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
----------------------
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
--------------------------
proposed to be made in respect of a Loan or REO Loan which, in the judgment
of the Servicer, the Special Servicer or the Trustee, as applicable, will not
be ultimately recoverable, together with any accrued and unpaid interest
thereon, from Late Collections or any other recovery on or in respect of such
Loan or REO Loan. The determination by the Servicer, the Special Servicer or
the Trustee, as applicable, that it has made (or, in the case of a
determination made by the Special Servicer, that the Servicer has made) a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered to (i) the Trustee and the Depositor, in the case of
the Servicer, (ii) to the Servicer in the case of the Special Servicer, and
(iii) to the Depositor and the Servicer, in the case of the Trustee. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Servicer, the Special Servicer or the Trustee,
as applicable, forming the basis of such determination (which shall include
but shall not be limited to information, to the extent available, such as
related income and expense statements, rent rolls, occupancy status, property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee shall be entitled to conclusively rely on
the Servicer's determination that a P&I Advance is nonrecoverable. The
Servicer shall be entitled to conclusively rely on the Special Servicer's
determination that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
--------------------------------
made or proposed to be made in respect of a Loan or REO Property which, in
the judgment of the Servicer, the Special Servicer or the Trustee, as the
case may be, will not be ultimately recoverable, together with any accrued
and unpaid interest thereon, from Late Collections or any other recovery on
or in respect of such Loan or REO Property. The determination by the
Servicer, the Special Servicer or the Trustee, as the case may be, that it
has made (or, in the case of a determination made by the Special Servicer,
that the Servicer has made) a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered
to (i) the Trustee and the Depositor, in the case of the Servicer, (ii) to
the Servicer in the case of the Special Servicer, and (iii) to the Depositor
and the Servicer, in the case of the Trustee. The Officer's Certificate
shall set forth such determination of nonrecoverability and the
considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, occupancy status and property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee will be entitled to conclusively rely on the
Servicer's determination that a Servicing Advance is nonrecoverable. The
Servicer shall be entitled to conclusively rely on the Special Servicer's
determination that a Servicing Advance is a Nonrecoverable Servicing Advance.
"Non-Registered Certificate": Unless and until registered under the
--------------------------
Securities Act, any Certificate other than a Public Certificate.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
---------------
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form 4224 or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that such
Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
"Note": The original executed note evidencing the indebtedness of a
----
Mortgagor under a Loan, together with any rider, addendum or amendment
thereto.
"Notional Balance": For any date of determination, an amount equal
----------------
to the sum of the Certificate Balances of the Classes of Regular Certificates
other than the Class A-X Certificates as of the preceding Distribution Date
(after giving effect to the distribution of principal on such Distribution
Date) or, in the case of the first Distribution Date, the Cut-off Date.
"Officer's Certificate": A certificate signed by a Servicing Officer
---------------------
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee.
"Operating Statement Analysis": With respect to each Loan and REO
----------------------------
Property, a report substantially containing the information described in
Exhibit I-7 attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may be
------------------
salaried counsel for the Depositor, the Servicer or the Special Servicer,
acceptable in form and delivered to the Trustee, except that any opinion of
counsel relating to (a) the qualification of the Upper-Tier REMIC or Lower-
Tier REMIC as a REMIC, (b) compliance with the REMIC
Provisions or (c) the resignation of the Depositor, the Servicer or the
Special Servicer pursuant to Section 6.04 must be an opinion of counsel that
is in fact Independent of the Depositor, the Servicer or the Special
Servicer, as applicable.
"Optimal Interest Distribution Amount": As to any Distribution Date
------------------------------------
and any Class of Regular Certificates, the sum of the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount for such Class
for such Distribution Date.
"Original Certificate Balance": With respect to any Class of Regular
----------------------------
Certificates (other than the Class A-X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
------------------------------------
Uncertificated Lower-Tier Interest, the initial principal amount thereof as
of the Closing Date, in each case as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
--------------
upon the Appraisal conducted in connection with the origination of the
related Loan.
"Originator": Any institution which originated a Loan.
----------
"OTS": The Office of Thrift Supervision or any successor thereto.
---
"Ownership Interest": As to any Certificate, any ownership or
------------------
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner
or as pledgee.
"Pass-Through Rate": As to each Class of Certificates, the rate set
-----------------
forth in the table below:
Class A-1A: Class A-1A Pass-Through Rate
Class A-1B: Class A-1B Pass-Through Rate
Class A-1C: Class A-1C Pass-Through Rate
Class A-2: Class A-2 Pass-Through Rate
Class B: Class B Pass-Through Rate
Class C: Class C Pass-Through Rate
Class D: Class D Pass-Through Rate
Class E: Class E Pass-Through Rate
Class F: Class F Pass-Through Rate
Class G: Class G Pass-Through Rate
Class H: Class H Pass-Through Rate
Class I: Class I Pass-Through Rate
Class J: Class J Pass-Through Rate
Class K: Class K Pass-Through Rate
Class A-X: Class A-X Pass-Through Rate
"Penalty Charges": With respect to any Loan (or successor REO Loan),
---------------
any amounts actually collected thereon from the Mortgagor that represent late
payment charges or Default Interest, other than a Prepayment Premium or Yield
Maintenance Charge.
"Percentage Interest": As to any Certificate, the percentage
-------------------
interest evidenced thereby in distributions required to be made with respect
to the related Class. With respect to any Regular Certificate, the
percentage interest is equal to the Denomination of such Certificate divided
by the initial Certificate Balance (or, in the case of the Class A-X
Certificates, the Notional Balance) of such Class of Certificates as of the
Closing Date. With respect to a Class V-1 or Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
---------------------
obligations or securities, regardless whether issued by the Depositor, the
Servicer, the Special Servicer, the Trustee or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, FNMA, FHLMC or any agency or instrumentality of the United
States of America, the obligations maturing one year or less after the
date of issuance and which are backed by the full faith and credit of
the United States of America; provided that any obligation of, or
guarantee by, FNMA or FHLMC, other than an unsecured senior debt
obligation of FNMA or FHLMC, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating Agency
to any Certificate as confirmed in writing;
(ii) time deposits, uncertificated certificates of deposit, or
bankers' acceptances that mature in one year or less after the date of
issuance and are issued or held by any depository institution or trust
company incorporated or organized under the laws of the United States of
America or any State thereof and subject to supervision and examination
by federal or state banking authorities, so long as the commercial paper
or other short-term debt obligations of such depository institution or
trust company are rated at least "A-1+" by S&P, "P-1" by Moody's and "F-
1+" by Fitch or would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating Agency
to any Certificate, as confirmed in writing by such Rating Agency;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or trust
company (acting as principal) described in clause
(ii) above;
(iv) debt obligations maturing in one year or less bearing
interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof,
which securities have (i) ratings from S&P and Fitch at least equal to
"AA-" and from Moody's at least equal to the minimum maturity-based
ratings described below or (ii) such other ratings (as confirmed by the
applicable Rating Agency in writing) as will not result in a downgrade,
qualification or withdrawal of the then-current rating of the
Certificates that are currently being rated by such Rating Agency;
provided, however, that securities issued by any particular corporation
-------- -------
will not be Permitted Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued by
such corporation and held in the accounts established hereunder to
exceed 10% of the sum of the aggregate principal balance and the
aggregate principal amount of all Permitted Investments in such
accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) payable on demand
or on a specified date maturing in 1 year or less after the date of
issuance thereof and which is rated at least "A-1+" by S&P, "P-1" by
Moody's and "F-1+" by Fitch;
(vi) units of investment funds that maintain a constant net asset
value, money market funds, rated "AAAm" by S&P, "Aaa" by Moody's and in
the highest category by Fitch; and
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating Agency
shall have confirmed in writing that such investment will not result in
a downgrade, qualification or withdrawal of the then-current rating of
the Certificates that are currently being rated by such Rating Agency
and (b) which qualifies as a "cash flow investment" pursuant to
Section 860G(a)(6) of the Code;
provided, however, that in each case, the minimum maturity-based
- -------- -------
ratings by Moody's for investments are: (i) if the investment matures within
one month, "A2" or "P-1"; (ii) if the investment matures more than one month
later but within three months, "A1" and "P-1"; (iii) if the investment
matures more than three months but within six months, "Aa3" and "P-1"; and
(iv) if the investment matures more than six months later, "Aaa" and "P-1";
and provided, further, however, that in each case, if the investment is
-------- ------- -------
rated by S&P, (a) it shall not have an "r" highlighter affixed
to its rating from S&P, (b) it shall have a predetermined fixed dollar of
principal due at maturity that cannot vary or change and (c) any such
investment that provides for a variable rate of interest must have an
interest rate that is tied to a single interest rate index plus a fixed
spread, if any, and move proportionately with such index; and provided,
--------
further, however, that no such instrument shall be a Permitted Investment
- ------- -------
(a) if such instrument evidences principal and interest payments derived
from obligations underlying such instrument and the interest
payments with respect to such instrument provide a yield to maturity at the
time of acquisition of greater than 120% of the yield to maturity at par of
such underlying obligations or (b) if such instrument may be redeemed at a
price below the purchase price; and provided, further, however, that no
-------- ------- -------
amount beneficially owned by either the Upper Tier REMIC or the Lower-Tier
REMIC (even if not yet deposited in the Trust) may be invested in
investments (other than money market funds) treated as equity interests for
federal income tax purposes, unless the Servicer receives an Opinion of
Counsel, at its own expense, to the effect that such investment will not
adversely affect the status of either the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC under the Code or result in imposition of a tax on such
Upper-Tier REMIC or Lower-Tier REMIC. Permitted Investments that are
subject to prepayment or call may not be purchased at a price in excess of
par.
"Person": Any individual, corporation, partnership, limited
------
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"P&I Advance": As to any Loan or REO Loan, any advance made by the
-----------
Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section
7.05.
"P&I Advance Date": The Business Day immediately prior to each
----------------
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
------------------------------
Date, the second Business Day immediately prior thereto.
"Plan": As defined in Section 5.02(c).
----
"Pool Loan": A Loan secured by more than one Mortgaged Property.
---------
"Prepayment Assumption": With respect to all Loans other than the
---------------------
ARD Loans, the assumption that all payments required to be made on such Loans
according to their contractual terms (including repayment in full on their
respective maturity dates) are so made. With respect to all ARD Loans, the
assumption that the ARD Loans will be fully prepaid on their related
Anticipated Repayment Dates.
"Prepayment Interest Excess": With respect to any Distribution Date,
--------------------------
for each Loan that was subject to a Principal Prepayment in full or in part,
or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Due Date in the month of such Distribution Date and on or prior to the
related Determination Date, the amount of interest accrued on the amount of
such Principal Prepayment or Insurance and Condemnation Proceeds after the
Mortgage Interest Accrual Period relating to such Due Date and accruing in
the manner set forth in the related Loan Documents, to the extent such
interest is collected by the Servicer or the Special Servicer.
"Prepayment Interest Shortfall": With respect to any Distribution
-----------------------------
Date, for each Loan that was subject to a Principal Prepayment in full or in
part, or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Determination Date in the calendar month preceding such Distribution Date
but prior to the Due Date in the related Due Period, the amount of interest
that would have accrued at the Mortgage Pass-Through Rate (net of the
Servicing Fee Rate) for such Loan on the amount of such Principal Prepayment
or Insurance and Condemnation Proceeds during the period commencing on the
date as of which such Principal Prepayment or Insurance and Condemnation
Proceeds were applied to the unpaid principal balance of the Loan and ending
on (and including) the day immediately preceding such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a
------------------
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Principal Prepayment": Any payment of principal made by the
--------------------
Mortgagor on a Loan which is received in advance of its scheduled Due Date
and which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment, other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Private Certificate": Any Class A-2, Class A-X, Class B, Class C,
-------------------
Class D, Class E, Class F, Class G, Class H, Class I, Class J or Class K
Certificate.
"Private Loan": Loan No. 163 on the Mortgage Loan Schedule, which is
------------
secured by the Hyatt Aruba Mortgage Loan.
"Private Loan Available Distribution Amount": With respect to any
------------------------------------------
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Private Loan (and the related
REO Property) and on deposit in the Certificate Account and the Lower-Tier
Distribution Account as of the close of business on the Business Day
preceding the related Servicer Remittance Date, exclusive of the following
amounts:
(i) all Monthly Payments collected but due on a Due Date following the
end of the related Due Period;
(ii) all Principal Prepayments (together with any related payments of
interest allocable to the period following the Due Date for the
related Loan during the related Due Period), Balloon Payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds and
other unscheduled recoveries received or deemed received after
the end of the related Due Period;
(iii) all amounts in the Certificate Account that are payable or
reimbursable to any Person from such account pursuant to
clauses (ii) through (xviii), inclusive, of Section 3.05(a);
(iv) all amounts in the Lower-Tier Distribution Account that are payable
or reimbursable to any Person from such account pursuant to clauses
(ii) through (iv), inclusive, of Section 3.05(b);
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) all amounts deposited in the Certificate Account or the Lower-Tier
Distribution Account, as the case may be, in error;
(vii) any interest or investment income on funds on deposit in the
Certificate Account, the Interest Reserve Account, any Cash
Collateral Account, any Lock-Box Account, any Reserve Account
or any REO Account or in Permitted Investments in which such
funds may be invested; and
(viii) with respect to any Distribution Date relating to each
Interest Accrual Period ending in each February or any January
in a year immediately preceding a year which is not a leap
year, an amount equal to one day of interest on the Stated
Principal Balance of the Private Loan as of the Due Date in
the month preceding the month in which such Distribution Date
occurs at the related Mortgage Rate to the extent such amount
is to be deposited in the Interest Reserve Account and held
for future distribution pursuant to Section 3.30.
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred with respect to the Private Loan from the REO
Account to the Certificate Account for such Distribution Date pursuant to
Section 3.16(c); and
(c) the aggregate amount of any P&I Advances made in respect of the
Private Loan by the Servicer or the Trustee, as applicable, for such
Distribution Date pursuant to Section 4.03 or 7.05 (net of any related
Trustee Fee).
"Private Loan Principal Distribution Amount": As to any Distribution
------------------------------------------
Date, the sum of (i) the amount collected or otherwise received on or with
respect to principal of the Private Loan during the related Due Period and
(ii) that portion of the P&I Advance, if any, made in respect of principal of
the Private Loan with respect to such Distribution Date.
"Prospectus": The Prospectus dated June 17, 1997, as supplemented by
----------
the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement dated June 25,
---------------------
1997, relating
to the offering of the Public Certificates.
"Public Certificate": Any Class A-1A, Class A-1B or Class A-1C
------------------
Certificate.
"Purchase Price": With respect to any Loan to be purchased by the
--------------
Mortgage Loan Seller pursuant to Section 7 of the Mortgage Loan Purchase
Agreement, by the Servicer or the Special Servicer pursuant to
Section 3.18(b), or by the Mortgage Loan Seller, the holders of a majority of
the Percentage Interests in the Controlling Class or the Servicer pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(c), a price
equal to the sum of the following:
(i) the outstanding principal balance of such Loan as of the
date of purchase;
(ii) all accrued and unpaid interest on such Loan at the related
Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of purchase;
(iii) all related unreimbursed Servicing Advances plus accrued and
unpaid interest on related Advances at the Reimbursement Rate, and
unpaid Servicing Fees, Seller-Servicer Fees and Special Servicing Fees
allocable to such Loan; and
(iv) if such Mortgage Loan is being purchased by the Mortgage
Loan Seller pursuant to Section 7 of the Mortgage Loan Purchase
Agreement, all reasonable out-of-pocket expenses reasonably incurred or
to be incurred by the Servicer, the Special Servicer, the Depositor and
the Trustee in respect of the Breach or Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
-----------------------------
"Qualified Insurer": (i) With respect to any Loan, REO Loan or REO
-----------------
Property, an insurance company or security or bonding company qualified to
write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A2" by Moody's, "A" by S&P
and "A" by Fitch if then rated by Fitch, and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a
claims paying ability rated no lower than two ratings below the rating
assigned to the then highest rated outstanding Certificate, but in no event
lower than "A" by Fitch if then rated by Fitch, "A" by S&P and "Baa3" by
Moody's, or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating
Agency to
downgrade, qualify or withdraw the then-current rating assigned to any of the
Certificates that are then currently being rated by such Rating Agency.
"Rated Final Distribution Date": As to each Class of Certificates,
-----------------------------
June 20, 2029.
"Rating Agency": Each of Fitch, Moody's and S&P or their successors
-------------
in interest. If any of the three such rating agency or any successor remains
in existence, "Rating Agency" 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 Trustee and the Servicer, and specific ratings of Fitch, Moody's and S&P
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Record Date": With respect to any Distribution Date, the last
-----------
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Reduction Rate": A rate per annum equal to the average of the Pass
--------------
Through Rates of each Class to which an Appraisal Reduction has been
allocated (in accordance with Section 4.05 hereof), weighted on the basis of
the amount of Appraisal Reductions allocated to such Class.
"Registrar Office": As defined in Section 5.02(a).
----------------
"Regular Certificate": Any Public Certificate or Private
-------------------
Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
------------------
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" section of The
---
Wall Street Journal (or, if such section or publication is no longer
- -------------------
available, such other comparable publication as is determined by the Trustee
in its sole discretion) as may be in effect from time to time, or, if the
"Prime Rate" no longer exists, such other comparable rate (as determined by
the Trustee in its reasonable discretion) as may be in effect from time to
time.
"Related Certificates" and "Related Uncertificated Lower-Tier
--------------------
Interest": For the following Classes of Uncertificated Lower-Tier Interests,
the related Class of Certificates set forth below and for the following
Classes of Certificates, the related Class of Uncertificated Lower-Tier
Interests set forth below:
Related Uncertificated
Related Certificates Lower-Tier Interest
- -------------------- -----------------------------------
Class A-1A Certificate Class LA-1A Uncertificated Interest
Class A-1B Certificate Class LA-1B Uncertificated Interest
Class A-1C Certificate Class LA-1C Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
"Remaining Principal Distributable Amount": As to any Distribution
----------------------------------------
Date and a given Class of Regular Certificates other than the Class A-X
Certificates, the amount, if any, by which the sum of the General Principal
Distribution Amount and the Private Loan Distribution Amount for such
Distribution Date exceeds the aggregate amount distributed in respect of such
amounts on such Distribution Date to all Classes senior to such given Class.
"REMIC": A "real estate mortgage investment conduit" as defined in
-----
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law
----------------
relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and
related provisions, and proposed, temporary and final Treasury regulations
and any rulings promulgated thereunder, as the foregoing may be in effect
from time to time.
"Rents from Real Property": With respect to any REO Property, gross
------------------------
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
-----------
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled
"Lennar Partners, Inc. as Special Servicer, in trust for the Chase Manhattan
Bank, as Trustee, for Holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 1997-
C1, REO Account." Any such account or accounts shall be an Eligible Account.
"REO Acquisition Date": The date of acquisition for federal income
--------------------
tax purposes of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
---------------
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
-------------
"REO Loan": The Loan deemed to be outstanding with respect to each
--------
REO Property. Each REO Loan shall be deemed to be outstanding for so long as
the related REO Property (i) remains part of the Trust Fund, (ii) provides
for Assumed Scheduled Payments on each Due Date therefor and (iii) otherwise
has the same terms and conditions as its predecessor Loan, including, without
limitation, with respect to the calculation of the Mortgage Rate in effect
from time to time (such terms and conditions to be applied without regard to
the default on such predecessor Loan). Each REO Loan shall be deemed to have
an initial outstanding principal balance and Stated Principal Balance equal
to the outstanding principal balance and Stated Principal Balance,
respectively, of its predecessor Loan as of the date of the related REO
Acquisition. All amounts due and owing in respect of the predecessor Loan as
of the date of the related REO Acquisition, including, without limitation,
accrued and unpaid interest, shall continue to be due and owing in respect of
an REO Loan. All amounts payable or reimbursable to the Servicer, the
Special Servicer or the Trustee, as applicable, in respect of the predecessor
Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Special Servicing Fees and Servicing Fees and any
unreimbursed Advances, together with any interest accrued and payable to the
Servicer or the Trustee in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or
reimbursable to the Servicer or the Trustee in respect of an REO Loan.
Collections in respect of each REO Loan (exclusive of amounts to be applied
to the payment of, or to be reimbursed to the Servicer or the Special
Servicer for the payment of, the costs of operating, managing and maintaining
the related REO Property) shall be treated: first, as a recovery of accrued
-----
and unpaid Advances, Seller-Servicer Fees and Servicing Fees and related
interest due the Servicer or the Trustee, as applicable; second, as a
------
recovery of accrued and unpaid interest on such REO Loan at the related
Mortgage Rate to but not including the Due Date in the Due Period of receipt;
third, as a recovery of principal of such REO Loan to the extent of its
- -----
entire unpaid principal balance; and fourth, in accordance with the Servicing
------
Standards of the Servicer, as a recovery of any other amounts due and owing
in respect of such REO Loan, including, without limitation, Yield Maintenance
Charges, Prepayment Premiums and Penalty Charges.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
-----------------------
Date therefor, the Mortgage Interest Accrual Period with respect to the
related Loan immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
------------
Servicer on behalf of and in the name of the Trustee (or its nominee) for the
benefit of the Certificateholders through foreclosure, acceptance of a deed
in lieu of foreclosure or otherwise in accordance with applicable law in
connection with the default or imminent default of a Loan.
"REO Revenues": All income, rents and profits derived from the
------------
ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially containing the
-----------------
information described in
Exhibit I-5 attached hereto, setting forth, among other things, with respect
to each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of
such report, (i) the acquisition date of such REO Property, (ii) the amount
of income collected with respect to any REO Property net of related expenses
and other amounts, if any, received on such REO Property during the related
Due Period and (iii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such date of determination (including any prepared internally by the Special
Servicer).
"Request for Release": A release signed by a Servicing Officer of
-------------------
the Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
--------------------
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial Trustee
-------------------
and Certificate Registrar, any Vice President, Assistant Vice President,
corporate trust officer or assistant corporate trust officer of the Trustee
or Certificate Registrar, as applicable, having direct responsibility for the
administration of this Agreement, and with respect to any successor Trustee
or Certificate Registrar, as applicable, any officer or assistant officer in
the corporate trust department of the Trustee or Certificate Registrar, as
applicable, or any other officer of the Trustee or Certificate Registrar, as
applicable, customarily performing functions similar to those performed by
any of the above designated officers to whom a particular matter is referred
by the Trustee or Certificate Registrar, as applicable, because of such
officer's knowledge of and familiarity with the particular subject.
"Revised Rate": With respect to the Loans, the increased interest
------------
rate after the Anticipated Repayment Date (in the absence of a default) for
each applicable Loan, as calculated and as set forth in the related Loan.
"S&P": Standard and Poor's Ratings Services, a division of the
---
McGraw-Hill Companies, Inc., and its successors in interest.
"Securities Act": The Securities Act of 1933, as amended.
--------------
"Seller-Servicer": Either of Continental Wingate Associates, Inc.
---------------
and National Cooperative Bank.
"Seller-Servicer Agreement": The Sub-Servicing Agreement dated as of
-------------------------
June 1, 1997, as amended as of such date, by and between the Servicer
and each of the Seller-Servicers.
"Seller-Servicer Fee": With respect to each Loan for which there is
-------------------
a Seller-Servicer Fee Rate set forth in the Mortgage Loan Schedule, the fee
payable to the related Seller-Servicer under the Seller-Servicer Agreement,
or, with respect to Loan Nos. 14, 29, 102 and
150, to the Servicer pursuant to Section 3.11(a), based on the Seller-
Servicer Fee Rate.
"Seller-Servicer Fee Rate": With respect to each Loan subject to the
------------------------
Seller-Servicer Agreement, the related "Sub-Servicing Fee Rate" set forth in
the Seller-Servicer Agreement. In the case of Loan Nos. 29, 102 and 150,
0.40% per annum. In the case of Loan No. 14, 0.125% per annum.
"Security Agreement": With respect to any Loan, any security
------------------
agreement or equivalent instrument, whether contained in the related Mortgage
or executed separately, creating in favor of the holder of such Mortgage a
security interest in the personal property constituting security for
repayment of such Loan.
"Servicer": First Union National Bank and its successor in interest
--------
and assigns, or any successor Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution Date,
------------------------
the Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer
--------------------------
and/or the Special Servicer in such media as may be agreed upon by the
Servicer, the Special Servicer and the Trustee containing such information
regarding the Loans as will permit the Trustee to calculate the amounts to be
distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Loan specified therein, and containing
such additional information as the Servicer, the Special Servicer and the
Trustee may from time to time agree.
"Servicing Account": The account or accounts created and maintained
-----------------
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
------------------
of pocket" costs and expenses (including attorneys' fees and expenses and
fees of real estate brokers) incurred by the Servicer in connection with the
servicing and administering of (a) a Loan in respect of which a default,
delinquency or other unanticipated event has occurred or is reasonably
foreseeable or (b) an REO Property, including, but not limited to, the cost
of (i) compliance with the Servicer's obligations set forth in
Section 3.03(c), (ii) the preservation, restoration and protection of a
Mortgaged Property, (iii) obtaining any Insurance and Condemnation Proceeds
or any Liquidation Proceeds of the nature described in clauses (i) through
(iv) of the definition of "Liquidation Proceeds", (iv) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including
foreclosures, (v) the operation, leasing, management, maintenance and
liquidation of any REO Property, (vi) any Appraisal, and (vii) any "forced
placed" insurance policy purchased.
"Servicing Fee": With respect to each Loan and REO Loan, the fee
-------------
payable to the Servicer pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to each Loan, Specially Serviced
------------------
Loan, and REO Loan, a rate equal to 0.05% per annum computed on the basis of
a 360-day year consisting of twelve 30-day months on the Stated Principal
Balance of the related Loan.
"Servicing Officer": Any officer and/or employee of the Servicer or
-----------------
the Special Servicer involved in, or responsible for, the administration and
servicing of the Loans, whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer to the Trustee and the Depositor
on the Closing Date as such list may be amended from time to time thereafter.
"Servicing Standards": As defined in Section 3.01(a).
-------------------
"Servicing Transfer Event": With respect to any Loan, the occurrence
------------------------
of any of the following events:
(i) a payment default shall have occurred on such Loan at its
maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60
days or more delinquent; or
(iii) the Servicer determines that a payment default has occurred
or is imminent and is not likely to be cured by the related Mortgagor
within 60 days; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs is entered against the related Mortgagor;
provided that if such decree or order is discharged or stayed within 60
days of being entered, such Loan shall not be a Specially Serviced Loan
(and no Special Servicing Fees, Workout Fees or Liquidation Fees will be
payable with respect thereto); or
(v) the related Mortgagor shall file for or consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property; or
(viii) any other default has occurred which has materially and
adversely affected the value of the related Loan and has continued
unremedied for the applicable grace period specified in the related
Mortgage.
(ix) The occurrence of a Credit Lease Enhancement Policy
Termination Event (as defined in Section 3.31(e)).
"Significant Loan": Any Loan (i) whose principal balance
----------------
is $20,000,000 or more or (ii) that is part of a group of Crossed Loans or
group of loans made to affiliated borrowers which in the aggregate represent
5% or more of the aggregate outstanding principal balances of all of the
Mortgage Loans together with the outstanding principal balance of the Private
Loan.
"Similar Law": As defined in Section 5.02(c).
-----------
"Special Servicer": Lennar Partners, Inc., a Florida corporation, or
----------------
any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
---------------------
Loan and REO Loan, the fee payable to the Special Servicer pursuant to the
first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
--------------------------
Serviced Loan and each REO Loan, 0.25% per annum computed on the basis of the
Stated Principal Balance of the related Loan and for the same period for
which any related interest payment on the related Specially Serviced Loan is
computed.
"Specially Serviced Loan": As defined in Section 3.01(a).
-----------------------
"Startup Day": The Closing Date.
-----------
"State Tax Laws": The laws of the states of Florida, New York and
--------------
North Carolina as well as any state the applicability of which to the Trust
Fund or the REMICs shall have been confirmed to the Trustee in writing either
by the delivery to the Trustee of an Opinion of Counsel to such effect (which
Opinion of Counsel shall not be at the expense of the Trustee), or by the
delivery to the Trustee of a written notification to such effect by the
taxing authority of such state.
"Stated Principal Balance": With respect to any Loan (other than an
------------------------
REO Loan), as of any date of determination, an amount equal to (x) the Cut-
off Date Principal Balance of
such Loan, plus (y) any Mortgage Deferred Interest added to the principal
balance of such Loan on or before the end of the immediately preceding Due
Period, minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Loan after the Cut-off Date, to the extent received from the Mortgagor
or advanced by the Servicer or Trustee, as applicable, and distributed
to Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such Loan
after the Cut-off Date, to the extent distributed to Certificateholders
on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Loan
after the Cut-off Date, to the extent distributed to Certificateholders
on or before such date of determination; and
(iv) any reduction in the outstanding principal balance of such
Loan resulting from a Deficient Valuation that occurred prior to the end
of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an amount
equal to (x) the Stated Principal Balance of the predecessor Loan as of the
date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to the predecessor Loan on or after the date of the related REO
Acquisition, to the extent distributed to Certificateholders on or
before such date of determination; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Loan or an REO Loan shall be deemed to be part of the Trust Fund and
to have an outstanding Stated Principal Balance until the Distribution Date
on which the payments or other proceeds, if any, received in connection with
a Liquidation Event in respect thereof are to be distributed to
Certificateholders.
"Stichting Documents": The Articles of Association of Beachfront
-------------------
Funding B.V., the deed of incorporation of Stichting Administratiekantoor,
the Administration Conditions relating thereto, the General Assignment dated
as of June 30, 1997 and any other document or instrument relating to any of
the foregoing.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
-----------------------
Class F, Class G, Class H, Class I, Class J or Class K Certificate.
"Sub-Servicer": Any Person with which the Servicer or the Special
------------
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
-----------------------
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Loans by such Sub-Servicer as provided in
Section 3.22.
"Successor Manager": As defined in Section 3.19(b).
-----------------
"Tax Returns": The federal income tax return on Internal Revenue
-----------
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of each of the Upper-Tier REMIC and the Lower-
Tier REMIC due to its classification as a REMIC under the REMIC Provisions,
and Form 1041 for the portions of the Trust Fund intended to be treated as a
grantor trust for federal income tax purposes pursuant to Section 407 of the
Code, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
"The Chase Manhattan Bank": The Chase Manhattan Bank, a New York
------------------------
banking corporation, or any corporation or other entity into which it may be
merged, consolidated or converted, or any corporation, or other entity
resulting from any merger, consolidation or conversion to which it shall be a
party, or any corporation or other entity succeeding to its business.
"Transfer": Any direct or indirect transfer, sale, pledge,
--------
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
------------------
"Transferee": Any Person who is acquiring by Transfer any Ownership
----------
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
----------
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
-----------------
"Trust Fund": The segregated pool of assets subject hereto,
----------
constituting the Trust, consisting of: (i) the Loans subject to this
Agreement and all interest and principal received or receivable on or with
respect to the Loans (other than payments of principal and interest
due and payable on the Loans on or before the Cut-off Date and payments of
principal and interest due and payable on the Loans after the Cut-off Date
and paid on or before the Cut-off Date), together with all documents included
in the related Mortgage Files; (ii) such funds or assets as from time to time
are deposited in the Certificate Account, the Distribution Accounts, the
Excess Interest Distribution Account, the Interest Reserve Account, and, if
established, the REO Account; (iii) any REO Property; (iv) the rights of the
mortgagee under all Insurance Policies with respect to the Loans and (v)
the rights of the Depositor under the Mortgage Loan Purchase Agreement.
"Trustee": The Chase Manhattan Bank, a New York banking corporation,
-------
in its capacity as trustee and its successors in interest, or any successor
trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
------------------------
"Trustee Fee": The fee to be paid to the Trustee as compensation for
-----------
the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.004% per annum computed on the
----------------
basis of a 360-day year consisting of twelve 30-day months on the Stated
Principal Balance of the related Loan.
"UCC": The Uniform Commercial Code, as enacted in each applicable
---
state.
"UCC Financing Statement": A financing statement executed and filed
-----------------------
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1A, Class
-----------------------------------
LA-1B, Class LA-1C, Class LA-2, Class LB, Class LC, Class LD, Class LE,
Class LF, Class LG, Class LH, Class LI, Class LJ and Class LK Uncertificated
Interests.
"Uncovered Prepayment Interest Shortfall Amount": As to any
----------------------------------------------
Distribution Date, the amount by which (i) the sum of the Prepayment Interest
Shortfalls, if any, for such Distribution Date exceeds (ii) the aggregate
reduction in the Servicer's compensation for such Distribution Date pursuant
to the last paragraph of Section 3.11(a).
"Underwritten Debt Service Coverage Ratio": With respect to any
----------------------------------------
Loan, the ratio of (i) Underwritten Net Cash Flow produced by the related
Mortgaged Property to (ii) the aggregate amount of the Monthly Payments due
for the twelve-month period immediately following the Cut-off Date.
"Underwritten Net Cash Flow": With respect to any Loan, the
--------------------------
estimated annual revenue derived from the use and operation of the related
Mortgaged Property, less estimated annual expenses, including operating
expenses (such as utilities, administrative expenses, repairs and
maintenance, management fees and advertising), fixed expenses (such
as insurance and real estate taxes) and replacement reserves and any
other reserves or deduction from revenue taken into account in connection
with the origination of such Loan.
"Underwriter": Credit Suisse First Boston Corporation.
-----------
"Unpaid Interest Shortfall Amount": As to the first Distribution
--------------------------------
Date and any Class of Regular Certificates, zero. As to any Distribution Date
after the first Distribution Date and any Class of Regular Certificates, the
amount, if any, by which the sum of the Interest Shortfall Amounts for such
Class for prior Distribution Dates exceeds the sum of the amounts distributed
on such Class on prior Distribution Dates in respect of such Interest
Shortfall Amounts.
"Upper-Tier Distribution Account": 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 "The Chase
Manhattan Bank, as Trustee, in trust for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-
Through Certificates, Series 1997-C1, Upper-Tier Distribution Account". Any
such account or accounts shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the
----------------
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-
Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
-----------
corporation, 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 trustees have authority to control all substantial decisions of the
trust.
"Voting Rights": The portion of the voting rights of all of the
-------------
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement and for any date of determination, the Voting Rights
shall be allocated among the various Classes of Certificateholders as
follows: (i) 2% in the case of the Class A-X Certificates, and (ii) in the
case of any other Class of Regular Certificates a percentage equal to the
product of 98% and a fraction, the numerator of which is equal to the
aggregate Certificate Balance of such Class, in each case, determined as of
the Distribution Date immediately preceding such date of determination, and
the denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates, each determined as of the Distribution Date immediately
preceding such date of determination. None of the Class V-1, Class R or
Class LR Certificates will be entitled to any Voting Rights. For purposes of
determining Voting
Rights, the Certificate Balance of any Class shall be deemed to be reduced by
allocation of the Collateral Support Deficit to such Class. Voting Rights
allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by
their respective Certificates.
"Watch List": A report substantially containing the information
----------
described in Exhibit I-6 attached hereto, setting forth, among other things,
any Loan that as of the Determination Date immediately preceding the
preparation thereof, is in jeopardy of becoming a Specially Serviced Loan.
"Withheld Amounts": As defined in Section 3.30(a).
----------------
"Workout Fee": The fee paid to the Special Servicer with respect to
-----------
each Corrected Loan.
"Workout Fee Rate": as defined in Section 3.11(b).
----------------
"Yield Maintenance Charge": With respect to any Loan, the yield
------------------------
maintenance charge set forth in the related Loan.
"Yield Rate": With respect to any Loan, the yield rate set forth in
----------
the related Loan documents.
SECTION 1.02. Certain Calculations.
--------------------
Unless otherwise specified herein, for purposes of determining amounts
with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest with respect to the Loans
(other than the Actual/360 Loans and Actual/Actual Loans) and of
Advances provided for herein shall be made on the basis of a 360-day
year consisting of twelve 30-day months. All calculations of interest
with respect to the Actual/360 Loans and Actual/Actual Loans and
Advances provided for herein shall be made as set forth in such Loan
with respect to the calculation of interest accruing at the related
Mortgage Rate.
(ii) Any Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, the Special Servicer or
the Trustee; provided, however, that for purposes of calculating
-------- -------
distributions on the Certificates, Principal Prepayments with
respect to any Loan are deemed to be received on the date they are
applied to reduce the outstanding principal balance of such Loan.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral
Support Deficit allocated to such Class on such Distribution Date
pursuant to Section 4.04 and (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such Certificate
Balance pursuant to Section 4.06(b) (except that no such increase in
Certificate Balance pursuant to this clause (c) shall count for the
purposes of determining Voting Rights or the identity of the Controlling
Class).
(End of Article I)
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
---------------------------------
SECTION 2.01. Conveyance of Loans.
-------------------
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Loans
identified on the Mortgage Loan Schedule, (ii) the Mortgage Loan Purchase
Agreement and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date). The transfer of the
Loans and the related rights and property accomplished hereby is absolute
and, notwithstanding Section 10.07, is intended by the parties to constitute
a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to
be delivered to and deposited with, the Trustee or a Custodian appointed
thereby (with a copy to the Servicer), on or before the Closing Date, the
Mortgage File for each Loan so assigned. If the Mortgage Loan Seller cannot
deliver, or cause to be delivered as to any Loan, the original Note, the
Mortgage Loan Seller shall deliver a copy or duplicate original of such Note,
together with an affidavit in the form attached as Exhibit K hereto,
certifying that the original thereof has been lost or destroyed.
If the Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (vi), (viii), (xi) and (xii) of the definition of "Mortgage
File," with evidence of recording thereon, solely because of a delay caused
by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of the Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by the Mortgage Loan Seller
to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian and the Servicer on or
before the Closing Date, and either the original of such non-delivered
document or instrument, or a photocopy thereof (certified by the appropriate
county recorder's office to be a true and complete copy of the original
thereof submitted for recording), with evidence of recording thereon, is
delivered to the Trustee or a Custodian within 120 days of the Closing Date,
which period may be extended up to two times, in each case for an additional
period of 45 days provided that the Mortgage Loan Seller is, as certified in
writing to the Trustee prior to each such 45-day extension, in good faith
attempting to obtain from the appropriate county recorder's office such
original or photocopy.
If the Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (vi), (viii), (xi) and (xii) of the definition of "Mortgage
File," with evidence of recording thereon, for any other reason, including,
without limitation, that such non-delivered document or instrument has been
lost, the delivery requirements of the Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied and such non-
delivered document or instrument shall be deemed to have been included in the
Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified by the
appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Trustee or a
Custodian appointed thereby and to the Servicer on or before the Closing
Date.
Neither the Trustee nor any Custodian shall in any way be liable for any
failure by the Mortgage Loan Seller or the Depositor to comply with the
delivery requirements of the Mortgage Loan Purchase Agreement and this
Section 2.01(b). Notwithstanding the foregoing, in the event that the
Mortgage Loan Seller fails to deliver a UCC-2 or UCC-3 on or before the
Closing Date as required above solely because the related UCC-1 has not been
returned to the Mortgage Loan Seller by the applicable filing office, the
Mortgage Loan Seller shall not be in breach of its obligations with respect
to such delivery, provided that the Mortgage Loan Seller promptly forwards
such UCC-1 to the Servicer (with a copy to the Trustee) upon its return.
(c) The Servicer shall, as to each Loan, promptly (and in any event the
later of (i) 90 days after the Closing Date and (b) 45 days from receipt)
cause to be submitted for recording or filing, as the case may be, each
assignment referred to in clauses (ii), (iii), (iv), (v) and (vii) of the
definition of "Mortgage File" and each UCC-2 and UCC-3 referred to in clause
(xi) of the definition of "Mortgage File." The Servicer shall make any of
the filings set forth in the prior sentence and shall be reimbursed by the
Mortgage Loan Seller for all related costs of the filing. Each such
assignment shall reflect that it should be returned by the public recording
office to the Servicer 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. If any such document or instrument is lost or returned
unrecorded or unfiled because of a defect therein, the Servicer shall prepare
or cause to be prepared a substitute therefor or cure such defect, as the
case may be, and thereafter the Servicer shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate. Within 30 days following
request therefor, the Depositor shall reimburse or cause to reimburse the
Servicer for all of its cost and expenses incurred in performing its
obligation under this Section 2.01(c).
(d) All documents and records in the Depositor's or the Mortgage Loan
Seller's
possession relating to the Loans (including financial statements, operating
statements and any other information provided by the respective Mortgagor
from time to time) that are not required to be a part of a Mortgage File in
accordance with the definition thereof shall be delivered to the Servicer
within 30 days of the Closing Date and shall be held by the Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of the Mortgage Loan
Purchase Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that, promptly
after the Closing Date, but in all events within three Business Days after
the Closing Date, the Mortgage Loan Seller shall cause all funds on deposit
in escrow accounts maintained with respect to the Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Servicer (or
a Sub-Servicer at the direction of the Servicer) for deposit into Servicing
Accounts.
SECTION 2.02. Acceptance by Trustee.
---------------------
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Sections 2.01 and 2.02(d), to any exceptions noted on the
Trustee Exception Report, and to the further review provided for in Section
2.02(b), of the documents specified in clauses (i)-(v), (viii), (ix), (xi),
(xii) and (xiii) of the definition of "Mortgage File" with respect to each
Loan, of a fully executed original counterpart of the Mortgage Loan Purchase
Agreement and of all other assets 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 the other documents
delivered or caused to be delivered by the Mortgage Loan Seller constituting
the Mortgage Files, and that it holds and will hold such other assets
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Loan documents delivered or caused to be
delivered by the Mortgage Loan Seller constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, subject to Sections 2.01 and 2.02(d),
certify in writing to each of the Depositor, the Servicer, the Special
Servicer and the Mortgage Loan Seller that, as to each Loan listed in the
Mortgage Loan Schedule (other than any Loan paid in full or any Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in clauses (i) -
(v), (viii), (ix), (xi), (xii) and (xiii) of the definition of "Mortgage
File" are in its possession, (ii) all documents delivered or caused to be
delivered by the Mortgage Loan Seller constituting the Mortgage Files have
been reviewed by it or by a Custodian on its behalf and appear regular on
their face and appear to relate to such Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (i), (iv), (vi), (viii)(a) and (viii)(c) of the definition of
"Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
Loan documents received thereby subsequent to the Closing Date; and, on or
about the first anniversary of the Closing Date, the Trustee shall, subject
to Sections 2.01 and 2.02(d), certify in writing to each of the Depositor,
the Servicer, the Special Servicer and the Mortgage Loan Seller that, as to
each Loan listed on the Mortgage Loan Schedule (other than any Loan as to
which a Liquidation Event has occurred or any Loan specifically identified in
any exception report annexed thereto as not being covered by such
certification), (i) all documents specified in clauses (i) - (v), (viii),
(ix), (xi), (xii) and (xiii) of the definition of "Mortgage File" are in its
possession, (ii) it or a Custodian on its behalf has received either a
recorded original of each of the assignments specified in clause (iii) and
clause (v) of the definition of "Mortgage File", insofar as an unrecorded
original thereof had been delivered or caused to be delivered by the Mortgage
Loan Seller or a copy of such recorded original certified by the applicable
public recording office to be true and complete, (iii) all Loan documents
received by it or any Custodian have been reviewed by it or by such Custodian
on its behalf and appear regular on their face and appear to relate to such
Loan and (iv) based on the examinations referred to in subsection (b) above
and this subsection (c) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (i), (iv), (vi), (viii) (a) and (viii) (c) of the
definition of "Mortgage Loan Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (x), (xiv), (xv) and (xvi) of
the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Seller or any other Person or (ii) to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Loans delivered to it to determine that the same
are valid, legal, effective, in recordable form, genuine, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File not to have been properly executed or,
to contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or to be
defective on its face (each, a "Defect" in the related
------
Mortgage File), the Trustee shall promptly so notify the Depositor, the
Servicer, the Special Servicer and the Mortgage Loan Seller (and in no event
later than 90 days after the Closing Date), by providing a written report
(the "Trustee Exception Report") setting forth for each affected
------------------------
Loan, with particularity, the nature of such Defect.
SECTION 2.03. Representations, Warranties and Covenants of the
------------------------------------------------
Depositor; Mortgage Loan Seller's Repurchase of Loans for Defects in
- --------------------------------------------------------------------
Mortgage Files and Breaches of Representations and Warranties.
- -------------------------------------------------------------
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Depositor has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement by it, and has
the power and authority to execute, deliver and perform this Agreement
and all the transactions contemplated hereby, including, but not limited
to, the power and authority to sell, assign and transfer the Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of
this Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or
by which it is bound, or any order or decree applicable to the
Depositor, or result in the creation or imposition of any lien on any of
the Depositor's assets or property, which would materially and adversely
affect the ability of the Depositor to carry out the transactions
contemplated by this Agreement; the Depositor has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the
Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or
by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of the Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement;
(v) The Depositor is the lawful owner of the Loans with the full
right to transfer the Loans to the Trust Fund and the Loans have been
validly transferred to
the Trust; and
(vi) Following consummation of the conveyance of the Loans by the
Depositor to the Trustee, the Depositor shall take no action
inconsistent with the Trust Fund's ownership of the Loans, and if a
third party, including a potential purchaser of the Loans, should
inquire, the Depositor shall promptly indicate that the Loans have been
sold and shall claim no ownership interest therein.
(b) If any Certificateholder, the Servicer, the Special Servicer or the
Trustee discovers or receives notice of a Defect in any Mortgage File or a
breach of any representation or warranty set forth in, or required to be made
with respect to a Loan by the Mortgage Loan Seller pursuant to, the Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case
------
may be, materially and adversely affects the value of any Loan or the
interests of the Certificateholders therein, such Certificateholder, the
Servicer, the Special Servicer or the Trustee, as applicable, shall give
prompt written notice of such Defect or Breach, as the case may be, to the
Depositor, the Servicer, the Special Servicer and the Mortgage Loan Seller
and shall request that the Mortgage Loan Seller, not later than the earlier
of 90 days from the Mortgage Loan Seller's receipt of such notice or the
Mortgage Loan Seller's discovery of such Breach, cure such Defect or Breach,
as the case may be, in all material respects or repurchase the affected Loan
at the applicable Purchase Price or in conformity with the Mortgage Loan
Purchase Agreement. Any Defect or Breach which causes any Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein. If the affected Loan is to be repurchased, the
Trustee shall designate the Certificate Account as the account into which
funds in the amount of the Purchase Price are to be deposited by wire
transfer.
(c) In connection with any repurchase of a Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the Mortgage Loan Seller, upon delivery to each of the Trustee, the
Servicer and the Special Servicer of a trust receipt executed by the Mortgage
Loan Seller, all portions of the Mortgage File and other documents pertaining
to such Loan possessed by it, and each document that constitutes a part of
the Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed or assigned, as the case may be, to the Mortgage Loan Seller in the
same manner as provided in Section 7 of the Mortgage Loan Purchase Agreement.
(d) Section 7 of the Mortgage Loan Purchase Agreement provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Defect in a Mortgage File or any Breach of
any representation or warranty set forth in or required to be made pursuant
to Section 2 of such Mortgage Loan Purchase Agreement.
(e) If the Mortgage Loan Seller defaults on its obligations to
repurchase any Loan as contemplated by Section 2.03(b), the Trustee shall
promptly notify the Certificateholders,
the Rating Agencies, the Servicer and the Special Servicer of such default.
The Trustee shall enforce the obligations of the Mortgage Loan Seller under
Section 7 of the Mortgage Loan Purchase Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, shall be
carried out in such form, to such extent and at such time as if it were, in
its individual capacity, the owner of the affected Loan(s). The Trustee
shall be reimbursed for the reasonable costs of such enforcement: first, from
-----
a specific recovery of costs, expenses or attorneys' fees against the
Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) out of the
------
related Purchase Price, to the extent that such expenses are a specific
component thereof; and third, if at the conclusion of such enforcement
-----
action it is determined that the amounts described in clauses first and
-----
second are insufficient, then pursuant to Section 3.05(a)(viii) out of
- ------
general collections on the Loans on deposit in the Certificate Account.
SECTION 2.04. Execution of Certificates.
-------------------------
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges the
assignment to it of the Loans and the delivery to it or a Custodian on its
behalf of the Mortgage Files and a fully executed original counterpart of the
Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment
and delivery and in exchange therefor, the Trustee acknowledges the issuance
of the Uncertificated Lower-Tier Interests to the Depositor and, pursuant to
the written request of the Depositor executed by an officer of the Depositor,
the execution, authentication and delivery of the Class LR and Class V-1
Certificates to or upon the order of the Depositor, in exchange for the
Loans, receipt of which is hereby acknowledged, and immediately thereafter,
the Trustee acknowledges that, pursuant to the written request of the
Depositor executed by an officer of the Depositor, it has executed and caused
the Authenticating Agent to authenticate and to deliver to or upon the order
of the Depositor, in exchange for the Uncertificated Lower-Tier Interests,
the Regular Certificates and the Class R Certificates, and the Depositor
hereby acknowledges the receipt by it or its designees, of such Certificates
in authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
(End of Article II)
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
---------------------------
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act
----------------------------------------------------
as Special Servicer; Administration of the Loans.
- ------------------------------------------------
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Loans it is obligated to service pursuant to this
Agreement on behalf of the Trust Fund and in the best interests of and for
the benefit of the Certificateholders (as determined by the Servicer or the
Special Servicer, as the case may be, in its good faith and reasonable
judgment) in accordance with applicable law, and, to the extent consistent
with the foregoing, the terms of the respective Loans or Specially Serviced
Loans, and, to the extent consistent with the foregoing, in accordance with
the terms of this Agreement and, to the extent consistent with the foregoing,
in accordance with the higher of the following standards of care: (1) the
same manner in which, and with the same care, skill, prudence and diligence
with which, the Servicer or Special Servicer, as the case may be, services
and administers similar commercial or multifamily mortgage loans for other
third-party portfolios, giving due consideration to the customary and usual
standards of practice of prudent institutional multifamily or commercial
mortgage lenders servicing their own mortgage loans and (2) the same care,
skill, prudence and diligence with which the Servicer or Special Servicer, as
the case may be, services and administers similar commercial or multifamily
mortgage loans owned by the Servicer or Special Servicer, in either case
exercising reasonable business judgment and acting in accordance with
applicable law, the respective Loans or Specially Serviced Loans, and, to the
extent not inconsistent with the foregoing, the terms of this Agreement, as
applicable, and with a view to the maximization, on a present value basis
(discounting at the related Mortgage Rate), of timely recovery of principal
and interest on the Loans or Specially Serviced Loans, as applicable, and the
best interests of the Trust Fund and the Certificateholders, as determined by
the Servicer or Special Servicer, as the case may be, in its reasonable
judgment, but without regard to: (i) any relationship that the Servicer or
the Special Servicer, as the case may be, or any Affiliate thereof may have
with the related Mortgagor or any other party to this Agreement; (ii) the
ownership of any Certificate by the Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof; (iii) the Servicer's obligation to
make Advances; and (iv) the Servicer's or Special Servicer's, as the case may
be, right to receive compensation for its services hereunder or with respect
to any particular transaction (the foregoing, collectively referred to as the
"Servicing Standards").
-------------------
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Loans as to
which a Servicing Transfer Event has occurred and is continuing (each such
Loan, a "Specially Serviced Loan") and (ii) any REO Properties; provided,
----------------------- --------
that the Servicer shall continue to make all calculations, and prepare, or
cause to be prepared by the Special Servicer and delivered to the Trustee,
all reports to
the Trustee required hereunder with respect to the Specially Serviced Loans
as if no Servicing Transfer Event had occurred and with respect to the REO
Properties (and the related REO Loans) as if no REO Acquisition had occurred,
and to render such incidental services with respect to such Specially
Serviced Loan and REO Properties as are specifically provided for herein;
provided, further, however, that the Servicer shall not be liable for failure
- -------- ------- -------
to comply with such duties insofar as such failure results from a failure of
the Special Servicer to provide sufficient information to the Servicer to
comply with such duties. Each Loan that becomes a Specially Serviced Loan
shall continue as such until satisfaction of the conditions specified in
Section 3.21(a). Without limiting the foregoing, subject to Section 3.21,
the Servicer shall be obligated to service and administer all Loans which
are not Specially Serviced Loans; provided, that the Special Servicer shall
--------
make the inspections, use its reasonable best efforts to collect the
statements and shall prepare the reports in respect of the related Mortgaged
Properties with respect to Specially Serviced Loans in accordance with
Section 3.12.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Loans, the Servicer and the Special Servicer
each shall have full power and authority, acting alone, to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem necessary or desirable. Without limiting the generality of
the foregoing, each of the Servicer and the Special Servicer, in its own
name, is hereby authorized and empowered by the Trustee and obligated to
execute and deliver, on behalf of the Certificateholders and the Trustee or
any of them, with respect to each Loan it is obligated to service under this
Agreement, any and all financing statements, continuation statements and
other documents or instruments necessary to maintain the lien created by the
related Mortgage or other security document in the related Mortgage File on
the related Mortgaged Property and related collateral; subject to
Section 3.20, any and all modifications, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; and
any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments. Subject to
Section 3.10, the Trustee shall furnish, or cause to be furnished, to the
Servicer or the Special Servicer any limited powers of attorney and other
documents necessary or appropriate to enable the Servicer or the Special
Servicer, as the case may be, to carry out its servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held
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liable for any negligence with respect to, or misuse of, any such power of
attorney by the Servicer or the Special Servicer.
(c) The relationship of each of the Servicer and the Special Servicer
to the Trustee under this Agreement is intended by the parties to be that of
an independent contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Loan Payments.
---------------------------
(a) Each of the Servicer and the Special Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of
the Loans it is obligated to
service hereunder, and shall follow such collection procedures as are
consistent with this Agreement (including, without limitation, the Servicing
Standards). Consistent with the foregoing, the Servicer or the Special
Servicer each may in its discretion waive any Penalty Charge in connection
with any delinquent payment on a Loan it is obligated to service hereunder.
(b) All amounts collected on any Loan in the form of payments from
Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds shall
be applied to amounts due and owing under the related Note and Mortgage
(including any modifications to either of them) in accordance with the
express provisions of the related Note and Mortgage and, in the absence of
such express provisions, shall be applied (after reimbursement to the
Servicer, any Sub-Servicer entitled to receive a Sub-Servicing Fee, and/or
the Trustee for any related Seller-Servicer Fee, Servicing Fee, Servicing
Advances and interest on Advances as provided herein): first, as
-----
a recovery of accrued and unpaid interest on such Loan at the related
Mortgage Rate in effect from time to time to but not including the Due Date
in the Due Period of receipt; second, as a recovery of principal of
------
such Loan to the extent of its entire unpaid principal balance; and third,
-----
in accordance with the Servicing Standards, as a recovery of any other
amounts due and owing on such Loan, including, without limitation, Prepayment
Premiums, Yield Maintenance Charges and Penalty Charges. Amounts collected
on any REO Loan shall be deemed to be applied in accordance with the
definition thereof.
(c) In the event that the Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Due Period, the Servicer or Special Servicer, as applicable,
shall promptly notify the Trustee thereof in writing.
(d) For purposes of this Agreement, to any voluntary Principal
Prepayment made on a date other than the related Due Date, and in
connection with which the Servicer has collected interest thereon through
the end of the related Mortgage Interest Accrual Period shall be deemed
to have been made, and the Servicer shall apply such Principal Prepayment
to reduce the outstanding principal balance of the related Loan as if
such Principal Prepayment had been received, on the following Due Date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
---------------------------------------------------
Servicing Accounts.
- ------------------
(a) The Servicer shall establish and maintain one or more accounts (the
"Servicing Accounts"), into which all Escrow Payments shall be deposited and
------------------
retained, and shall administer such Servicing Accounts in accordance with
the Loan documents. Servicing Accounts shall be Eligible Accounts. Funds
on deposit in the Servicing Accounts may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Withdrawals
of amounts so deposited from a Servicing Account may be made only to: (i)
effect payment of real estate taxes, assessments, Insurance Policy premiums,
ground rents (if applicable) and comparable items; (ii) reimburse the
Servicer or the Trustee for any Servicing Advances; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest
to Mortgagors on balances in the Servicing Account, if required by
applicable law or the terms of the related Loan and as described below or,
if not so required, to the Servicer; (v) withdraw amounts deposited in
error; (vi) clear and terminate the Servicing Accounts at the termination of
this Agreement in accordance with Section 9.01; and (vi) pay itself, as
additional servicing compensation in accordance with Section 3.11(a),
interest and investment income earned in respect of amounts relating to the
Trust Fund held in the Servicing Accounts as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the
Servicing Accounts for any period from any Distribution Date to the
immediately succeeding P&I Advance Date). The Servicer shall pay or cause
to be paid to the Mortgagors interest on funds in Servicing Accounts, to the
extent required by law or the terms of the related Loan.
(b) The Special Servicer, in the case of REO Loans, and the Servicer,
in the case of all other Loans, shall maintain accurate records with respect
to each related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien
thereon and the status of Insurance Policy premiums and any ground rents
payable in respect thereof. The Special Servicer, in the case of REO Loans
and Specially Serviced Loans, and the Servicer, in the case of all other
Loans, shall obtain all bills for the payment of such items (including
renewal premiums) and shall effect payment thereof from the REO Account or
the Servicing Accounts, or the Servicer shall make a Servicing Advance prior
to the applicable penalty or termination date (which shall be so applied by
the Servicer at the written direction of the Special Servicer in the case of
Specially Serviced Loans and REO Loans) as allowed under the terms of the
related Loan. To the extent that a Loan does not require a Mortgagor to
escrow for the payment of real estate taxes, assessments, Insurance Policy
premiums, ground rents (if applicable) and similar items, the Special
Servicer, in the case of Specially Serviced Loans and REO Loans, and the
Servicer, in the case of all other Loans, shall require that payments in
respect of such items be made by the Mortgagor at the time they first become
due.
(c) In accordance with the Servicing Standards and for all Loans, the
Servicer shall make a Servicing Advance with respect to each related
Mortgaged Property (including any REO Property) of all such funds as are
necessary for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items that are or may become a lien thereon,
(ii) ground rents (if applicable), (iii) premiums on Insurance Policies, (iv)
operating, leasing, managing and liquidation expenses for REO Properties and
(v) environmental inspections and remediations, if any, in each instance if
and to the extent monies in the Servicing Accounts are insufficient to pay
such item when due and the related Mortgagor has failed to pay such item on a
timely basis, so long as the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance; provided, however, that with
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respect to the payment of taxes and assessments, the Servicer shall not be
required to make any such advance until the earlier of five Business Days
after the Servicer has received confirmation that such item has not been
paid and the date prior to the date after which any penalty or interest
would accrue in respect of such taxes or assessments.
The Special Servicer shall give the Servicer and the Trustee not less
than five Business Days' notice before the date on which the Servicer is
requested to make any Servicing Advance with respect to a given Loan or REO
Property; provided, however, that only two Business Days' notice shall
-------- -------
be required in respect of Servicing Advances required to be made on an urgent
or emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments). In addition, the Special
Servicer shall provide the Servicer and the Trustee with such information in
its possession as the Servicer or the Trustee, as applicable, may reasonably
request to enable the Servicer or the Trustee, as applicable, to determine
whether a requested Servicing Advance would constitute a Nonrecoverable
Servicing Advance. Any request by the Special Servicer that the Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable
Servicing Advance, and the Servicer shall be entitled to conclusively rely on
such determination. On the fourth Business Day before each Distribution
Date, the Special Servicer shall report to the Servicer the Special
Servicer's determination as to whether any Servicing Advance previously made
with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable
Servicing Advance. The Servicer shall be entitled to conclusively rely on
such a determination.
All such advances shall be reimbursable in the first instance from
related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Loans, notwithstanding that the terms of such Loans so permit. If the
Servicer fails to make any required Servicing Advance as and when due to the
extent a Responsible Officer of the Trustee has been notified of such failure
in writing by the Servicer, Special Servicer or Depositor, the Trustee shall
make such Servicing Advance pursuant to Section 7.05.
(d) In connection with its recovery of any Servicing Advance out of the
Certificate Account pursuant to Section 3.05(a), each of the Servicer and the
Trustee, as the case may be, shall be entitled to receive, out of any amounts
then on deposit in the Certificate Account, interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of such Servicing
Advance from and including the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself or the Trustee, as the
case may be, for any outstanding Servicing Advance as soon as practically
possible after funds available for such purpose are deposited in the
Certificate Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Loan, the Servicer or,
with respect to Specially Serviced Loans, the Special Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time
after the later of the Closing Date and the date as of which such plan is
required to be established or completed. To the extent any repairs, capital
improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Loan, the Servicer or, with respect to
Specially Serviced Loans, the Special Servicer shall request from the
Mortgagor written confirmation of such actions and remediations within a
reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer (with respect to
Loans that are not Specially Serviced Loans) shall determine whether the
related Mortgagor has failed to perform its obligations under the related
Loan and report any such failure to the Special Servicer within a reasonable
time after the later of January 1, 1999 and the date as of which such actions
or remediations are required to be or to have been taken or completed.
SECTION 3.04. The Certificate Account, Excess Interest Distribution
-----------------------------------------------------
Account and Distribution Account.
- --------------------------------
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account in which the Servicer shall
deposit or cause to be deposited on a daily basis (and in no event later than
the Business Day following receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received
subsequent to the Cut-off Date (other than in respect of principal and
interest on the Loans due and payable on or before the Cut-off Date), or
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Loans;
(ii) all payments on account of interest on the Loans, net of the
Servicing Fees and Seller-Servicer Fees (in each case net of any amount
utilized to offset Prepayment Interest Shortfalls), Penalty Charges (net
of any amount thereof utilized to offset interest on Advances),
Prepayment Premiums, Excess Interest and Yield Maintenance Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Loan or REO Property (other than
Liquidation Proceeds that are to be deposited in the Lower-Tier
Distribution Account pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be deposited by the Servicer
pursuant to the last paragraph of Section 3.11(a) as a reduction in the
compensation to the Servicer to cover Prepayment Interest Shortfalls;
and
(viii) any Prepayment Interest Excess to which the Servicer is not
entitled as provided in Section 3.11(a).
The foregoing requirements for deposit in the Certificate Account shall
be exclusive, it being understood and agreed that, actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees,
amounts collected for mortgagor checks returned for insufficient funds or
other amounts that the Servicer or Special Servicer is entitled to retain as
additional servicing compensation pursuant to Section 3.11 need not be
deposited by the Servicer in the Certificate Account. If the Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate
Account.
Upon receipt of any of the foregoing amounts with respect to any
Specially Serviced Loan, the Special Servicer shall remit within one (1)
Business Day such amounts to the Servicer for deposit into the Certificate
Account in accordance with the second preceding paragraph. Any amounts
received by the Special Servicer with respect to an REO Property shall be
deposited into the REO Account and remitted to the Servicer for deposit into
the Certificate Account pursuant to Section 3.16(c).
(b) The Trustee, shall establish and maintain the Distribution Accounts
in trust for the benefit of the Certificateholders. The Trustee shall make
deposits in and withdrawals from the Distribution Accounts in accordance with
the terms of this Agreement. The Servicer shall deliver to the Trustee each
month on or before the P&I Advance Date therein, for deposit in the Lower-
Tier Distribution Account, that portion of the General Available Distribution
Amount and the Private Loan Distribution Amount (calculated without regard to
clauses (a)(iv), (a)(v), (a)(vi) and (c) of the definitions thereof) for the
related Distribution Date then on deposit in the Certificate Account.
The Servicer shall, as and when required hereunder, deliver to the
Trustee for deposit in the Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03 (or, if the Trustee succeeds to the
Servicer's obligations hereunder, Section 7.05);
(ii) any Liquidation Proceeds paid by the Mortgage Loan Seller,
Holders of the Controlling Certificates or the Servicer in connection
with the purchase of all of the Loans and any REO Properties in the
Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to
Section 9.01);
(iii) any Yield Maintenance Charges or Prepayment Premiums; and
(iv) any other amounts required to be so delivered for deposit in
the Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein.
On each Distribution Date, the Trustee shall deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal
to the Lower-Tier Distribution Amount and the amount of any Prepayment
Premiums and Yield Maintenance Charges for such Distribution Date allocated
in payment of the Uncertificated Lower-Tier Interests as specified in
Sections 4.01(b) and 4.01(d), respectively.
Prior to the Servicer Remittance Date relating to any Due Period in
which Excess Interest is received, the Trustee shall establish and maintain
the Excess Interest Distribution Account in the name of the Trustee in trust
for the benefit of the Holders of the Class V-1 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an
Eligible Account. On or before the Servicer Remittance Date related to the
applicable Distribution Date, the Servicer shall remit to the Trustee for
deposit in the Excess Interest Distribution Account an amount equal to the
Excess Interest received during the applicable Due Period. Following the
distribution of Excess Interest to Holders of the Class V-1 Certificates on
the first Distribution Date after which there are no longer any Loans
outstanding which pursuant to their terms could pay Excess Interest, the
Trustee shall terminate the Excess Interest Distribution Account.
Funds on deposit in the Certificate Account and the Excess Interest
Distribution Account may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. Funds on deposit in the
Upper-Tier Distribution Account and the Lower-Tier Distribution Account shall
not be invested. As of the Closing Date, the Certificate Account shall be
located at the offices of the Servicer. The Servicer shall give notice to
the Trustee, the Special Servicer and the Depositor of the location of the
Certificate Account and of any new location of the Certificate Account prior
to any change thereof. As of the Closing Date, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account shall be located at the
offices of the Trustee. The Trustee shall give notice to the Servicer and
the Depositor of the new location of the Upper-Tier Distribution Account and
the Lower-Tier
Distribution Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals from the Certificate Account and
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the Distribution Accounts.
- -------------------------
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account the amount required to be remitted pursuant to the
first paragraph of Section 3.04(b) and the amount to be applied to make
P&I Advances pursuant to Section 4.03(a);
(ii) to pay (x) to itself, unpaid Servicing Fees (net of any such
amounts required to offset Prepayment Interest Shortfalls pursuant to
Section 3.11(a)) and any Seller-Servicer Fees to which it is entitled
pursuant to Section 3.11(a), (y) to any Seller-Servicer entitled
thereto, the related Seller-Servicer Fee, and (z) to the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout
Fees in respect of each Loan, Specially Serviced Loan and REO Loan, as
applicable, the Servicer's rights, any Seller-Servicer's rights and the
Special Servicer's rights to payment pursuant to this clause (ii) with
respect to any Loan or REO Loan, as applicable, being limited to amounts
received on or in respect of such Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds) that are allocable as a recovery of
interest thereon;
(iii) to reimburse itself or the Trustee, as applicable, for
unreimbursed P&I Advances, the Servicer's or the Trustee's right to
reimburse itself pursuant to this clause (iii) being limited to amounts
received which represent Late Collections of interest (net of the
related Servicing Fees) on and principal of the particular Loans and REO
Loans with respect to which such P&I Advances were made;
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed Servicing Advances, the Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (iv) with
respect to any Loan or REO Property being limited to, as applicable,
related payments, Liquidation Proceeds, Insurance and Condemnation
Proceeds and REO Revenues;
(v) to reimburse itself or the Trustee, as applicable, for
Nonrecoverable Advances out of general collections on the Loans and REO
Properties;
(vi) at such time as it reimburses itself or the Trustee, as
applicable, for (a) any unreimbursed P&I Advance pursuant to clause
(iii) above, to pay itself or the Trustee, as applicable, any interest
accrued and payable thereon in accordance with Section 4.03(d), (b) any
unreimbursed Servicing Advances pursuant to clause (iv) above, to pay
itself or the Trustee, as the case may be, any interest accrued and
payable thereon in accordance with Section 3.03(d) or (c) any
Nonrecoverable Advances pursuant to clause (v) above, to pay itself or
the Trustee, as the case may be, any interest accrued and payable
thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Breach or Defect
giving rise to a repurchase obligation of the Mortgage Loan Seller under
Section 7 of the Mortgage Loan Purchase Agreement, including, without
limitation, any expenses arising out of the enforcement of the
repurchase obligation, each such Person's right to reimbursement
pursuant to this clause (vii) with respect to any Loan being limited to
that portion of the Purchase Price paid for such Loan that represents
such expense in accordance with clause (iv) of the definition of
Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, out of general collections on
the Loans and REO Properties for any unreimbursed expense reasonably
incurred by such Person in connection with the enforcement of the
Mortgage Loan Seller's obligations under Section 7 of the Mortgage Loan
Purchase Agreement, but only to the extent that such expenses are not
reimbursable pursuant to clause (vii) above or otherwise;
(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the Certificate
Account for any period from any Distribution Date to the immediately
succeeding P&I Advance Date) (net of any such amounts required to offset
Prepayment Interest Shortfalls pursuant to Section 3.11(a)) and any
Seller-Servicer Fees to which it is entitled pursuant to Section
3.11(a), (b) Penalty Charges on any Loan other than a Specially Serviced
Loan, but only to the extent (x) collected from the related Mortgagor
and (y) in excess of outstanding interest on Advances made with respect
to such Loan, and to the extent that all amounts then due and payable
with respect to such Loan have been paid and (c) all Prepayment Interest
Excess in connection with the receipt of Principal Prepayments (except to
the extent otherwise provided in Section 3.11(a)) or Insurance and
Condemnation Proceeds; and to pay the Special Servicer, as additional
servicing compensation in accordance with the second paragraph of
Section 3.11(b), Penalty Charges on Specially Serviced Loans (but only
to the extent collected from the related Mortgagor and to the extent
that all amounts then due and payable with respect to the related
Specially Serviced Loan have been paid);
(x) to recoup any amounts deposited in the Certificate Account
in error;
(xi) to pay itself, the Special Servicer, the Depositor, the
Extension Advisor or any of their respective directors, officers,
employees and agents, as the case may be, any amounts payable to any
such Person pursuant to Sections 6.03(a) or 6.03(b);
(xii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Section 3.32 to the extent payable out of the Trust
Fund, (b) the cost of any Opinion of Counsel contemplated by Sections
10.01(a) or 10.01(c) in connection with an amendment to this Agreement
requested by the Trustee or the Servicer, which amendment is in
furtherance of the rights and interests of Certificateholders and
(c) the cost of obtaining the REO Extension contemplated by
Section 3.16(a);
(xiii) to pay out of general collections on the Loans and REO
Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or either of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Servicer, the Special Servicer or the Trustee is
liable therefor;
(xiv) to reimburse the Servicer and the Special Servicer out of
general collections on the Loans and REO Properties for expenses
incurred by and reimbursable to them by the Trust Fund;
(xv) to pay itself, the Special Servicer, or the Mortgage Loan
Seller, as the case may be, with respect to each Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase;
(xvi) to reimburse the Special Servicer for the cost of any
environmental testing performed at the Special Servicer's direction
pursuant to the last sentence of Section 3.09(c);
(xvii) to pay the Extension Advisor any unpaid fees owed to it; and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting records, on a
loan-by-loan and property-by-property basis when appropriate, for the purpose
of justifying any withdrawal from the Certificate Account.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount
pursuant to Section 4.01(b) and the amount of any Prepayment Premium and
Yield Maintenance Charges distributable pursuant to Section 4.01(d) in
the Upper-Tier Distribution Account; and
(ii) to pay the Trustee accrued but unpaid Trustee Fees;
(iii) to pay to the Trustee or any of its Affiliates, directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Sections 6.03(a), 6.03(b)
or 8.05(b);
(iv) to pay for the cost of the Opinion of Counsel contemplated
by Section 10.01(c) in connection with any amendment to this Agreement
requested by the Trustee; and
(v) to clear and terminate the Lower-Tier Distribution Account
at the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier Distribution
Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class LR Certificates) on each Distribution Date pursuant
to Section 4.01 or 9.01, as applicable; and
(ii) to clear and terminate the Upper-Tier Distribution Account
at the termination of this Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect to
any Loan, (i) if amounts on deposit in the Certificate Account and the Lower-
Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii), then the Trustee Fee shall be paid in full prior to the
payment of any Servicing Fees payable under Section 3.05(a)(ii) and (ii) if
amounts on deposit in the Certificate Account are not sufficient to reimburse
the full amount of Advances listed in Sections 3.05(a)(iii), (iv), (v) and
(vi), then reimbursements shall be paid first to the Trustee and then to the
Servicer.
SECTION 3.06. Investment of Funds in the Certificate Account,
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Servicing Accounts, Cash Collateral Accounts, the Excess Interest
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Distribution Account, the Interest Reserve Account and the REO Account.
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(a) The Servicer may direct any depository institution maintaining the
Certificate Account, any Servicing Account, any Cash Collateral Account, any
Lock-Box Account, any Enhancement Policy Escrow Account, the Excess Interest
Distribution Account and the Interest Reserve Account, and the Special Servicer
may direct any depository institution maintaining the REO Account (any of the
foregoing accounts, for purposes of this Section 3.06, an "Investment
----------
Account"), to invest (or if such depository institution is the Servicer or
- --------
the Special Servicer, as applicable, it may itself invest) the funds held
therein in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the
Business Day immediately preceding the next succeeding date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the depository institution maintaining such account is
the obligor thereon and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
depository institution maintaining such account is the obligor thereon;
provided, however, that any such investment direction by the
- -------- -------
Servicer with respect to funds on deposit in the Interest Reserve Account
shall be coordinated with, and subject to the approval of, Credit Suisse
First Boston Corporation. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee (in its capacity as such).
Funds on deposit in the Distribution Accounts shall remain uninvested.
The Servicer (in the case of any Investment Account other than the REO
Account) or the Special Servicer (in the case of the REO Account), on behalf
of the Trustee, shall maintain continuous possession of any Permitted
Investment of amounts in such Accounts that is either (i) a "certificated
security," as such term is defined in the UCC or (ii) other property in which
a secured party may perfect its security interest by possession under the UCC
or any other applicable law. Possession of any such Permitted Investment by
the Servicer or the Special Servicer shall constitute possession by a person
designated by the Trustee for purposes of Section 8-313 of the UCC and
possession by the Trustee, as secured party, for purposes of Section 9-305 of
the UCC and any other applicable law. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable
on demand, the Servicer (in the case of any Investment Account other than the
REO Account) or the Special Servicer (in the case of the REO Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (a) all amounts then payable thereunder and (b) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as
the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in each
of the Certificate Account, the Excess Interest Distribution Account, any
Cash Collateral Account, any Lock-Box Account and any Servicing Account, to
the extent of the Net Investment Earnings, if any, with respect to such
account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date shall be for the sole and exclusive benefit of
the Servicer and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Section 3.03(a), 3.05(a), 3.05(b) or 3.05(c),
as the case may be. Interest and investment income realized on funds
deposited in any Enhancement Policy Escrow Account shall be used to
pay any interest on Advances made with respect to, or any other expenses of
the Trust Fund allocable to the related Loan, and the Servicer shall not be
entitled to any such interest or investment income. As compensation for
providing rating agency review services, interest and investment income
realized on funds deposited in the Interest Reserve Account to the extent of
the Net Investment Earnings, if any, for each period from any Distribution
Date to the immediately succeeding P&I Advance Date shall be for the sole
and exclusive benefit of Credit Suisse First Boston Corporation, or of any
successor corporation that provides such services, and shall be subject to
its withdrawal, or withdrawal at its direction. Interest and investment
income realized on funds deposited in the REO Account, to the extent of the
Net Investment Earnings, if any, with respect to such account for each period
from any Distribution Date to the immediately succeeding P&I Advance Date,
shall be for the sole and exclusive benefit of the Trust Fund and shall be
subject to its withdrawal in accordance with Section 3.16(c). In the event
that any loss shall be incurred in respect of any Permitted Investment on
deposit in any of the Certificate Account, the Excess Interest Distribution
Account, any Cash Collateral Account, any Lock-Box Account, any Servicing
Account or the REO Account, the Servicer (in the case of the Certificate
Account, the Excess Interest Distribution Account, any Cash Collateral
Account, any Lock-Box Account and any Servicing Account) or the Special
Servicer (in the case of the REO Account) shall deposit therein, no later
than the P&I Advance Date, without right of reimbursement, the amount of the
Net Investment Loss, if any, with respect to such account for the period
from the immediately preceding Distribution Date to such P&I Advance Date.
In the event that any loss shall be incurred in respect of any Permitted
Investment on deposit in the Interest Reserve Account, Credit Suisse First
Boston Corporation shall deposit therein, no later than the P&I Advance
Date, without right of reimbursement, the amount of the Net Investment Loss,
if any, with respect to such account for the period from the immediately
preceding Distribution Date to such P&I Advance Date. The Servicer shall
not be liable for any loss incurred in respect of any Permitted Investment
on deposit in any Enhancement Policy Escrow Account.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated
to any Class shall, take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate proceedings.
Notwithstanding the investment of funds held in the Certificate
Account pursuant to this Section 3.06, for purposes of calculating either the
General Available Distribution Amount or the Private Loan Available
Distribution Amount, the amounts so invested shall be deemed to remain on
deposit in such account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
---------------------------------------------
Omissions and Fidelity Coverage.
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(a) The Servicer as to Loans that are not Specially Serviced Loans and
the Special Servicer as to Specially Serviced Loans shall use their
respective reasonable best efforts to
cause the Mortgagor to maintain, to the extent required by the terms of the
related Note, or if the Mortgagor does not so maintain, shall itself
maintain, for each Loan any Insurance Policy coverage as is required under
the related Mortgage (to the extent that the Trustee has an insurable
interest and such Insurance Policy coverage is available at commercially
reasonable rates, as determined by the Servicer or the Special Servicer, as
applicable, in accordance with the Servicing Standards); provided,
--------
however, that if any Mortgage permits the holder thereof to dictate to the
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Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged
Property, the Servicer or the Special Servicer, as applicable, shall impose
such insurance requirements as are consistent with the Servicing Standards.
Subject to Section 3.17(a), the Special Servicer shall maintain for each REO
Property no less Insurance Policy coverage than was previously required of
the Mortgagor under the related Loan.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the
case of insurance maintained in respect of Loans other than REO Properties),
(ii) be in the name of the Special Servicer (in the case of insurance
maintained in respect of REO Properties) on behalf of the Trustee,
(iii) include coverage in an amount not less than the lesser of the full
replacement cost of the improvements which are a part of the Mortgaged
Property or the outstanding principal balance owing on the related Loan,
(iv) include a replacement cost endorsement providing no deduction for
depreciation (unless such endorsement is not permitted under the related Loan
documents) and (v) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies. Any amounts collected by
the Servicer or the Special Servicer under any such Insurance Policies (other
than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case in accordance with the Servicing Standards and the
provisions of the related Loan) shall be deposited in the Certificate
Account, subject to withdrawal pursuant to Section 3.05(a).
Any costs incurred by the Servicer in maintaining any such Insurance
Policies in respect of Loans (other than with respect to REO Properties) if
the Mortgagor defaults on its obligation to maintain such Insurance Policies
shall be advanced by the Servicer as a Servicing Advance and will be charged
to the related Mortgagor and shall not, for purposes of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance
of the related Loan, notwithstanding that the terms of such Loan so permit.
Any cost incurred by the Special Servicer in maintaining any such Insurance
Policies with respect to REO Properties shall be an expense of the Trust Fund
payable out of the related REO Account pursuant to Section 3.16(c) or, if the
amount on deposit therein is insufficient therefor, advanced by the Servicer
as a Servicing Advance.
(b) (i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring
against fire and hazard losses on all of the Loans or REO Properties, as
the case may be, required to be serviced and administered hereunder,
then, to the extent such Insurance Policy provides protection equivalent
to the individual policies otherwise required, the Servicer or the
Special
Servicer shall conclusively be deemed to have satisfied its obligation
to cause fire and hazard insurance to be maintained on the related
Mortgaged Properties or REO Properties. Such Insurance Policy may
contain a deductible clause, in which case the Servicer or the Special
Servicer shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a fire and hazard Insurance Policy
complying with the requirements of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such Insurance
Policy, promptly deposit into the Certificate Account from its own funds
the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy
because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Loan, or
in the absence of such deductible limitation, the deductible limitation
which is consistent with the Servicing Standards. In connection with its
activities as administrator and servicer of the Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a
timely fashion in accordance with the terms of such policy. The Special
Servicer, to the extent consistent with the Servicing Standards, may
maintain, at its own expense, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest Insurance Policy with a Qualified Insurer naming the Servicer
or the Special Servicer on behalf of the Trustee as the loss payee, then
to the extent such Insurance Policy provides protection equivalent to
the individual policies otherwise required, the Servicer or the Special
Servicer shall conclusively be deemed to have satisfied its obligation
to cause such insurance to be maintained on the related Mortgage
Properties and REO Properties. In the event the Servicer or the Special
Servicer shall cause any Mortgaged Property or REO Property to be
covered by such master single interest Insurance Policy, the incremental
costs of such insurance applicable to such Mortgaged Property or REO
Property (i.e., other than any minimum or standby premium payable for
such policy whether or not any Mortgaged Property or REO Property is
covered thereby) shall be paid by the Servicer out of its own funds.
Such master single interest Insurance Policy may contain a deductible
clause, in which case the Servicer or the Special Servicer shall, in the
event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a), and there shall have been one or more
losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account from its own funds the
amount not otherwise payable under the master single interest Insurance
Policy because of such deductible clause, to the extent that any such
deductible exceeds the deductible limitation that pertained to the
related Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standards.
(c) The Servicer and Special Servicer shall maintain with responsible
companies, at their own expense, a blanket fidelity bond (a "Fidelity Bond")
and an errors and omissions insurance policy with a Qualified Insurer, with
broad coverage on all officers, employees or other personnel acting in any
capacity requiring such persons to handle funds, money, documents or paper
relating to the Loans ("Servicer Employees," in the case of the Servicer, and
"Special Servicer Employees," in the case of the Special Servicer). Any such
Fidelity Bond and errors and omissions insurance shall protect and insure the
Servicer against losses, including forgery, theft, embezzlement, fraud,
errors and omissions, failure to maintain any insurance policies required
pursuant to the Agreement and negligent acts of such Servicer Employees or
Special Servicer Employees. Such errors and omissions policy shall also
protect and insure the Servicer against losses in connection with the release
or satisfaction of a Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section requiring such
Fidelity Bond and errors and omissions insurance shall diminish or relieve
the Servicer or Special Servicer from its duties and obligations as set forth
in this Agreement.
The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to $1,000,000. The
Servicer or the Special Servicer, as applicable, shall cause the Trustee, on
behalf of the Trust, to be named as a loss payee on each such fidelity bond
and errors and omissions policy. Notwithstanding the foregoing, so long as
the long term debt or the deposit obligations or claims-paying ability of the
Servicer or Special Servicer (or its immediate or remote parent) is rated at
least "A" by S&P, "A2" by Moody's and "A" by Fitch (or, if not rated by
Fitch, upon written confirmation by Fitch that self-insurance by the Servicer
or the Special Servicer, as applicable, with respect to a fidelity bond would
not by reason thereof cause Fitch to qualify, downgrade or withdraw the then
current rating assigned to any of the Certificates that are currently being
rated by Fitch), the Servicer or the Special Servicer, respectively, shall be
allowed to provide self-insurance with respect to a fidelity bond. The
amount of coverage shall be at least equal to the coverage that would be
required by FNMA or FHLMC, whichever is greater, with respect to the Servicer
or the Special Servicer if the Servicer or the Special Servicer, as
applicable, were servicing and administering the Loans or Specially Serviced
Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or the
Special Servicer under a policy or bond obtained by an Affiliate of the
Servicer or the Special Servicer and providing the coverage required by this
Section 3.07(c) shall satisfy the requirements of this Section 3.07(c).
The Special Servicer and the Servicer will promptly report in writing to
the Trustee any material changes that may occur in their respective fidelity
bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (and such flood insurance has
been made available), the Servicer will use its reasonable best efforts to
cause the related Mortgagor (in accordance
with applicable law and the terms of the Loan documents) to maintain, and, if
the related Mortgagor shall default in its obligation to so maintain, shall
itself maintain to the extent available at commercially reasonable rates (as
determined by the Servicer in accordance with the Servicing Standards), flood
insurance in respect thereof, but only to the extent the related Loan permits
the mortgagee to require such coverage and the maintenance of such coverage
is consistent with the Servicing Standards. Such flood insurance shall be in
an amount equal to the lesser of (i) the unpaid principal balance of the
related Loan, (ii) the maximum amount of insurance which is available under
the Flood Disaster Protection Act of 1973, as amended, and (iii) the amount
required by the Loan. If the cost of any insurance described above is not
borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance
for such costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will
cause to be maintained, to the extent available at commercially reasonable
rates (as determined by the Special Servicer in accordance with the Servicing
Standards), a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in an amount representing
coverage not less than the maximum amount of insurance which is available
under the Flood Disaster Protection Act of 1973, as amended. The cost of any
such flood insurance with respect to an REO Property shall be an expense of
the Trust Fund payable out of the related REO Account pursuant to
Section 3.16(c) or, if the amount on deposit therein is insufficient
therefor, paid by the Servicer as a Servicing Advance.
SECTION 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance
-------------------------------------------------
Clauses; Assumption Agreements; Defeasance Provisions.
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(a) As to each Loan which contains a provision in the nature of a "due-
on-sale" clause, which by its terms:
(i) provides that such Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property; or
(ii) provides that such Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
the Special Servicer shall enforce such due-on-sale clause, unless the
Special Servicer determines, in accordance with the Servicing Standards, that
(1) not declaring an Event of Default (as defined in the related Mortgage) or
(2) granting such consent would be likely to result in a greater recovery, on
a present value basis (discounting at the related Mortgage Rate), than would
enforcement of such clause or not granting such consent. If the Special
Servicer determines that (1) not declaring an Event of Default (as defined in
the related Mortgage) or (2) granting such consent would be likely to result
in a greater recovery, the Special Servicer shall take or enter into an
assumption agreement from or with the proposed
transferee as obligor thereon, provided that (a) the credit status of the
prospective transferee is in compliance with the Special Servicer's regular
commercial mortgage loan origination or Servicing Standards and criteria and
the terms of the related Mortgage and (b) with respect to any Loan which is a
Significant Loan, the Special Servicer shall have received written
confirmation from each of the Rating Agencies that such assumption would not,
in of itself, cause a downgrade, qualification or withdrawal of any of the
then current ratings assigned to the Certificates.
(b) As to each Loan which contains a provision in the nature of a "due-
on-encumbrance" clause, which by its terms:
(i) provides that such Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien
or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then the Special Servicer shall enforce such due-on-encumbrance clause and in
connection therewith shall (i) accelerate payments thereon or (ii) withhold
its consent to such lien or encumbrance unless the Special Servicer (x)
determines, in accordance with the Servicing Standards, that such enforcement
would result in a greater recovery on a present value basis (discounting at
the related Mortgage Rate) than would enforcement of such clause and (y)
receives prior written confirmation from each of Fitch, S&P and Moody's that
granting such consent or not accelerating payments on the related Loan
would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then-current ratings assigned to the Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Loan, any sale or other transfer of the related Mortgaged
Property or the creation of any additional lien or other encumbrance with
respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, the Special Servicer
shall not agree to modify, waive or amend any term of any Loan in connection
with the taking of, or the failure to take, any action pursuant to this
Section 3.08.
(e) Notwithstanding any other provisions of this Section 3.08, the
Servicer may grant a Mortgagor's request for consent to subject the related
Mortgaged Property to an easement or right-of-way for utilities, access,
parking, public improvements or another purpose and may consent to
subordination of the related Loan to such easement or right-of-way, provided
the Servicer shall have determined in accordance with the Servicing Standards
that such easement or right-of-way will not materially interfere with the
then-current use of the related Mortgaged Property or the security intended
to be provided by such Mortgage and
will not materially or adversely affect the value of such Mortgaged Property.
(f) With respect to any Loan which permits release of Mortgaged
Properties through defeasance:
(i) The Servicer shall effect such defeasance only through the
purchase of U.S. government obligations satisfying the requirements of clause
(i) of the definition of Permitted Investments herein which purchase shall be
made in accordance with the terms of such Loan; provided, that the Servicer
shall not accept the amounts paid by the related Borrower to effect
defeasance until such U.S. government obligations have been identified and an
Independent accounting firm has provided the Servicer assurance that such
defeasance is in a correct amount and in accordance with the terms of such
Loan.
(ii) In the event that such Loan permits the assumption of the
obligations of the related Borrower by a successor mortgagor, the Servicer
shall cause the Borrower to pay for the establishment of a successor Borrower
and cause an assumption by such successor Borrower of the defeased
obligations under the related Note only if (a) a given Rating Agency indicates
that such assumption would be a prerequisite to such Rating Agency's delivery
of written confirmation that such defeasance would not cause such Rating
Agency to withdraw, qualify or downgrade any of its then-current ratings on
the Certificates, (b) the Borrower would have more assets, after such
defeasance, than the U.S. government obligations to be obtained or (c)
the Borrower is not a special-purpose entity.
(iii) The Servicer shall require an Opinion of Counsel from the
related Borrower (which shall be an expense of the related Borrower) to the
effect that the Trustee has a first priority security interest in the
defeasance deposit and the U.S. government obligations and that the
assignment thereof is valid and enforceable.
(iv) The Servicer shall obtain at the related Borrower's expense
a certificate from an Independent certified public accountant certifying that
the U.S. government obligations comply with the requirements of the related
Loan Documents.
(v) Prior to permitting release of any Mortgaged Property
through defeasance, the Servicer shall obtain written confirmation from each
Rating Agency that such defeasance would not, in and of itself, result in a
downgrade, qualification or withdrawal of any of the then current ratings
assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property
through defeasance, if the related Loan so requires and provides for the
related Borrower to pay the cost thereof, the Servicer shall require an
Opinion of Counsel of the related Borrower to the effect that such release
will not cause either the Upper-Tier REMIC or Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or cause
a tax to be imposed on the Trust Fund under the REMIC Provisions.
SECTION 3.09. Realization upon Defaulted Loans.
--------------------------------
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such
Loans, as come into and continue in default as to which no satisfactory
arrangements can be made for collection of delinquent payments, and which are
not released from the Trust Fund pursuant to any other provision hereof. The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage such that the complete restoration of
such property is not fully reimbursable by the hazard insurance policies or
flood insurance policies required to be maintained pursuant to Section 3.07,
the Servicer shall not be required to make a Servicing Advance and expend
funds toward the restoration of such property unless the Special Servicer has
determined in its reasonable discretion that such restoration will increase
the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to the Servicer for such Servicing
Advance and interest thereon and the Servicer has determined that such
Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a)(iv). The Special
Servicer shall be responsible for all other costs and expenses incurred by it
in any such proceedings (such costs and expenses to be advanced by the
Servicer to the Special Servicer), provided that, in each case, such cost or
expense would not, if incurred, constitute a Nonrecoverable Servicing
Advance.
Nothing contained in this Section 3.09 shall be construed so as to
require the Servicer or the Special Servicer, on behalf of the Trust Fund, to
make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the Servicer or the Special Servicer in its reasonable and good
faith judgment taking into account the factors described in Section 3.18(d)
and the results of any Appraisal obtained pursuant to the following sentence,
all such bids to be made in a manner consistent with the Servicing Standards.
If and when the Special Servicer or the Servicer deems it necessary and
prudent for purposes of establishing the fair market value of any Mortgaged
Property securing a Defaulted Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer or the Servicer, as the case
may be, is authorized to have an Appraisal performed with respect to such
property, the cost of which Appraisal shall be paid by the Servicer as a
Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be a Servicing Advance) to the effect
that the holding of such
personal property by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or the Upper-Tier REMIC under the REMIC
Provisions or cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail
to qualify as a REMIC at any time that any Uncertificated Lower-Tier
Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property in lieu of foreclosure or otherwise, or take any other
action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders, would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner"
or "operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously
determined in accordance with the Servicing Standards, based on an
Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions
as are necessary to bring the Mortgaged Property in compliance therewith
is reasonably likely to produce a greater recovery on a present value
basis than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances
or conditions are present for which any such action could be required,
that taking such actions with respect to such Mortgaged Property is
reasonably likely to produce a greater recovery on a present value basis
than not taking such actions.
The cost of any such Environmental Assessment and the cost of any
remedial, corrective or other further action contemplated by clause
(i) and/or clause (ii) of the preceding sentence shall be paid by the
Servicer as a Servicing Advance. If any such Environmental Assessment so
warrants, the Special Servicer shall, at the expense of the Trust Fund,
perform such additional environmental testing as it deems necessary and
prudent to determine whether the conditions described in clauses (i) and
(ii) of the second preceding sentence have been satisfied.
(d) If (i) the environmental testing contemplated by subsection
(c) above establishes that either of the conditions set forth in clauses
(i) and (ii) of the first sentence thereof has not been satisfied with
respect to any Mortgaged Property securing a Defaulted Loan and (ii) there
has been no breach of any of the representations and warranties set forth in
or required to be made pursuant to Section 6 of the Mortgage Loan Purchase
Agreement for which the Mortgage Loan Seller could be required to repurchase
such Defaulted Loan
pursuant to Section 7 of the Mortgage Loan Purchase Agreement, then the
Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund and consistent with the Servicing
Standards (other than proceeding to acquire title to the Mortgaged Property)
and is hereby authorized at such time as it deems appropriate to release such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Servicer and the
Certificate Owners of the Class I, Class J and Class K Certificates monthly
regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a Defaulted Loan as to which the environmental
testing contemplated in subsection (c) above has revealed that either of the
conditions set forth in clauses (i) and (ii) of the first sentence thereof
has not been satisfied, in each case until the earlier to occur of
satisfaction of both such conditions, repurchase of the related Loan by the
Mortgage Loan Seller or release of the lien of the related Mortgage on such
Mortgaged Property; provided, however, that with respect to each such report
or Environmental Assessment, if beneficial ownership of the Class I, Class J
and Class K Certificates resides in more than one Certificate Owner, the
Special Servicer shall be responsible only for the expense of providing the
first such copy thereof and shall be entitled to reimbursement from the Trust
Fund for the expense of any additional copies so provided. The Trustee shall
forward all such reports to the Certificateholders and each Rating Agency
promptly following the receipt thereof.
(f) The Servicer shall report to the Internal Revenue Service and the
related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned
or foreclosed and the Servicer shall report, via Form 1099C, all forgiveness
of indebtedness. The Special Servicer shall provide the Servicer with such
information or reports as the Servicer deems necessary to fulfill its
obligations under this paragraph (f) promptly upon the Servicer's request
therefor. The Servicer shall deliver a copy of any such report to the
Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance
of an action to obtain a deficiency judgment if the state in which the
Mortgaged Property is located and the terms of the Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared by
one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Loan or REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Servicer no later than the next succeeding
P&I Advance Determination Date.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
-----------------------------------------------
(a) Upon the payment in full of any Loan, or the receipt by the
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes,
the Servicer or Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such
notice and request shall be in the form of a Request for Release signed by a
Servicing Officer and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to
Section 3.04(a) or remitted to the Servicer to enable such deposit, have been
or will be so deposited. Within seven Business Days (or within such shorter
period as release can reasonably be accomplished if the Servicer notifies the
Trustee of an exigency) of receipt of such notice and request, the Trustee,
at no cost to the Servicer or Special Servicer, shall release, or cause any
related Custodian to release, the related Mortgage File to the Servicer or
Special Servicer, as the case may be. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure of
any Loan, the Servicer or the Special Servicer shall deliver to the Trustee a
Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to
deliver the Mortgage File or any document therein to the Servicer or the
Special Servicer (or a designee), as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Servicer or the Special Servicer that such Loan has become an REO Property, a
copy of the Request for Release shall be released by the Trustee to the
Servicer or the Special Servicer (or a designee), as the case may be, with
the original being released upon termination of the Trust Fund.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's
sale or other documents necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by
the Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required, that
the proposed action is in the best interest of the Certificateholders and
that the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such
a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
----------------------
(a) As compensation for its activities hereunder, the Servicer shall be
entitled to receive the Servicing Fee with respect to each Loan and REO Loan
at the Servicing Fee Rate (in accordance with the same terms of the related
Note as are applicable to the accrual of interest at the Mortgage Rate) and
shall be computed on the basis of the Stated Principal Balance of such Loan
on a 30/360 basis. The Servicing Fee with respect to any Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Loan and REO Revenues allocable as interest on
each REO Loan.
The Servicer, on behalf of itself or any Seller-Servicer, shall be
entitled to recover unpaid Servicing Fees and Seller-Servicer Fees in respect
of any Loan or REO Loan out of that portion of related payments, Insurance
and Condemnation Proceeds, Liquidation Proceeds and REO Revenues (in the case
of an REO Loan) allocable as recoveries of interest, to the extent permitted
by Section 3.05(a). The right to receive the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all
of the Servicer's responsibilities and obligations under this Agreement. The
Servicer shall pay the annual fees of each Rating Agency and the Depositor,
within 30 days after request therefor, shall reimburse the Servicer for such
annual fees.
Additional servicing compensation in the form of (i) one-half of all
assumption fees paid by the Mortgagors on all Loans that are not Specially
Serviced Loans (but only to the extent that all amounts then due and payable
with respect to such Loans (except for interest on Advances then outstanding)
have been paid), (ii) charges for beneficiary statements or demands and
amounts collected for checks returned for insufficient funds, and (iii) other
customary charges, in each case only to the extent actually paid by the
related Mortgagor, shall be retained by the Servicer and shall not be
required to be deposited in the Certificate Account pursuant to
Section 3.04(a). The remaining assumption fees shall be delivered to the
Special Servicer as additional servicing compensation.
The Servicer shall also be entitled to additional servicing compensation
in the form of: (i) Penalty Charges received on each Loan (other than
Specially Serviced Loans) but only to the extent actually paid by the related
Mortgagor and to the extent that all amounts then due and payable with
respect to such Loan (including outstanding interest on all Advances accrued
with respect to such Loan) have been paid to the Servicer; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Certificate
Account, any Cash Collateral Account, any Lock-Box Account and the Excess
Interest Distribution Account in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to each such
account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date); (iii) interest earned on deposits in the
Servicing Accounts which are not required by applicable law or the related
Loan to be paid to the Mortgagor; and (iv) collections representing
Prepayment Interest Excess (other
than with respect to any Loan whose terms expressly permit collections of
interest through the following Due Date in connection with any voluntary
Principal Prepayment).
The Servicer shall also be entitled to receive the Seller-Servicer Fee
with respect to Loan Nos. 14, 29, 102 and 150, computed on the basis of the
related Stated Principal Balance and for the same period respecting
which any related interest payment due (or deemed to be due) on the related
Loan is computed.
The Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due, except for
premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of the Certificate Account, and the Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
Notwithstanding the foregoing paragraphs of this Section 3.11, the
Servicing Fee on any Loan other than a Specially Serviced Loan and the
investment income earned on any Principal Prepayment made on such Loan during
a given Due Period and due the Servicer on the related Distribution Date
shall be reduced by the Prepayment Interest Shortfall, if any, on such Loan
for such Distribution Date.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Loan and REO Loan. As to each Specially Serviced Loan and
REO Loan, the Special Servicing Fee shall accrue at the Special Servicing Fee
Rate (in accordance with the same terms of the related Note as are applicable
to the accrual of interest at the Mortgage Rate) and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Loan and for
the same period respecting which any related interest payment due on such
Specially Serviced Loan or deemed to be due on such REO Loan is computed.
The Special Servicing Fee with respect to any Specially Serviced Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis,
to the extent permitted by Section 3.05(a). The right to receive the Special
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Special Servicer's responsibilities and
obligations under this Agreement.
Additional servicing compensation in the form of (i) all assumption fees
on all Specially Serviced Loans, (ii) 50% of all assumption fees on any Loans
other than Specially Serviced Loans and (iii) all extension fees and
modification fees received on or with respect to any Loans, but only to the
extent actually collected from the related Mortgagor and only to the extent
that all amounts then due and payable after giving effect to any modification
with respect to the related Loan (including those payable to the Servicer
pursuant to Section 3.11(a)) have been paid, shall be promptly paid to the
Special Servicer by the Servicer and shall not be required to be deposited in
the Certificate Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected Loan
at the Workout Fee Rate of (i) 1.0% for any Loan with a Stated Principal
Balance of less than $10,000,000, (ii) 0.75% for any Loan with a Stated
Principal Balance equal to or greater than $10,000,000 but less than
$20,000,000 and (iii) 0.5% for any Loan with a Stated Principal Balance equal
to or greater than $20,000,000, applied to each collection of interest and
principal (including scheduled payments, prepayments, Balloon Payments and
payments at maturity) received on such Loan for so long as it remains a
Corrected Loan. The Workout Fee with respect to any Corrected Loan will
cease to be payable if such Loan again becomes a Specially Serviced Loan;
provided that a new Workout Fee will become payable if and when such Loan
again becomes a Corrected Loan. If the Special Servicer is terminated (other
than for cause or by resignation), it shall retain the right to receive any
and all Workout Fees payable with respect to Loans that became Corrected
Loans during the period that it acted as Special Servicer and were Corrected
Loans at the time of such termination (and the successor Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case
until the Workout Fee for any such loan ceases to be payable in accordance
with the terms hereof.
A Liquidation Fee will be payable with respect to each Specially
Serviced Loan as to which the Special Servicer receives any Liquidation
Proceeds subject to the exceptions set forth in the definition of Liquidation
Fee. As to each Specially Serviced Loan, the Liquidation Fee will be payable
out of, and will be calculated by application of a "Liquidation Fee Rate" of
(i) 1.0% for any Loan with a Stated Principal Balance of less than
$10,000,000, (ii) 0.75% for any Loan with a Stated Principal Balance equal to
or greater than $10,000,000 but less than $20,000,000, and (iii) 0.5% for any
Loan with a Stated Principal Balance equal to or greater than $20,000,000, in
each case expressed as a percentage of net liquidation proceeds received with
respect to such Specially Serviced Loan.
Notwithstanding anything to the contrary described above, no Liquidation
Fee will be payable based on, or out of, Liquidation Proceeds received in
connection with the repurchase of any Loan by the Mortgage Loan Seller for a
breach of representation or warranty or for defective or deficient Loan
documentation, the purchase of any Specially Serviced Loan by the Servicer or
the Special Servicer, the purchase by the Holder of the LR Certificates of
any ARD Loan pursuant to Section 9.03 or the purchase of all of the Loans and
REO Properties in connection with an optional termination of the Trust Fund
pursuant to Section 9.01. If, however, Liquidation Proceeds are received
with respect to any Corrected Loan and the Special Servicer is properly
entitled to a Workout Fee, such Workout Fee will be payable based on and out
of the portion of such Liquidation Proceeds that constitute principal and/or
interest on such Loan.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on each Specially Serviced Loan (but only to the
extent actually collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to such Specially Serviced Loan
(including outstanding interest on all Advances accrued with
respect to such Specially Serviced Loan) have been paid to the Special
Servicer). The Special Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts, other than
management fees in respect of REO Properties, due and owing to any of its
Sub-Servicers and the premiums for any blanket Insurance Policy obtained by
it insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not payable directly out of the Certificate Account
or the REO Account, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
SECTION 3.12. Reports to the Trustee; Certificate Account
-------------------------------------------
Statements.
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(a) The Servicer shall deliver to the Trustee and the Special Servicer,
no later than 4:00 p.m. New York City time on the third Business Day prior to
the Distribution Date, the Servicer Remittance Report with respect to the
related Distribution Date (which shall include, without limitation, the
General Available Distribution Amount and the Private Loan Distribution
Amount for such related Due Period) including a written statement of
anticipated P&I Advances for the related Distribution Date. The Servicer's
responsibilities under this Section 3.12(a) with respect to REO Loans shall
be subject to the satisfaction of the Special Servicer's obligations under
Section 3.21.
(b) For so long as the Servicer makes deposits into and withdrawals
from the Certificate Account, not later than thirty (30) days after each
Distribution Date, the Servicer shall forward to the Trustee a statement
setting forth the status of the Certificate Account as of the close of
business on the last Business Day of the related Due Period showing the
aggregate amount of deposits into and withdrawals from the Certificate
Account of each category of deposit specified in Section 3.04 and each
category of withdrawal specified in Section 3.05 for the related Due Period.
The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records
and accounts of the Servicer relating solely to the Loans and the performance
of its duties hereunder.
(c) No later than 1:00 p.m. New York City time on the Servicer
Remittance Date, the Servicer shall deliver or cause to be delivered to the
Trustee the following reports with respect to the Loans (and, if applicable,
the related REO Properties), providing the required information as of the
related Determination Date: (i) a Comparative Financial Status Report, (ii) a
Delinquent Loan Status Report; (iii) an Historical Loan Modification Report;
(iv) an Historical Loss Estimate Report; and (v) an REO Status Report. Such
reports shall be in writing and on a computer readable medium reasonably
acceptable to the Trustee and the Servicer.
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer in writing and on a
computer readable medium reasonably acceptable to the Servicer and the
Special Servicer by 1:00 p.m. New York City time at least two Business Days
prior to the related Servicer Remittance Date in the form required Section
3.12(f) or shall be provided by means of such reports so delivered by the
Special Servicer to the Servicer in the form so required. In the absence of
manifest error, the Servicer shall be entitled to conclusively rely upon,
without investigation or inquiry, the information and reports delivered to
it by the Special Servicer, and the Trustee shall be entitled to
conclusively rely upon the Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or recalculate
any of the amounts and other information stated therein. Servicer shall
provide to the Trustee any new data that Servicer collects or reports in
electronic format in its ordinary course of servicing.
(d) The Servicer shall deliver or cause to be delivered to the Trustee
the following materials, in each case to the extent that such materials or
the information on which they are based have been received by the Servicer:
(i) At least annually by May 31, with respect to each Loan and REO
Loan (to the extent prepared by and timely received from the Special Servicer
in the case of any Specially Serviced Loan or REO Loan), an Operating
Statement Analysis for the related Mortgaged Property or REO Property as of
the end of the preceding fiscal year, together with copies of the operating
statements and rent rolls (but only to the extent the related Borrower
delivers such information to the Servicer and, with respect to operating
statements and rent rolls for Specially Serviced Loans and REO Properties, to
the extent timely delivered by the Special Servicer to the Servicer), for the
related Mortgaged Property or REO Property as of the end of the preceding
fiscal year. The Servicer shall use its best reasonable efforts (but shall
not be required to institute litigation) to obtain said annual operating
statements and rent rolls with respect to each of the Loans, other than
Specially Serviced Loans or REO Loans, which efforts shall include sending a
letter to the related Borrower each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls until they
are received, to the extent such action is consistent with applicable law and
the terms of the Loans.
(ii) Within thirty days after receipt by the Servicer (or the Special
Servicer in the case of a Specially Serviced Loan or REO Property) of any
annual operating statements with respect to any Mortgaged Property or REO
Property (to the extent prepared by and received from the Special Servicer in
the case of any Specially Serviced Loan or REO Property), an NOI Adjustment
Worksheet for such Mortgaged Property (with the annual operating statements
attached thereto as an exhibit) shall be completed.
The Servicer shall maintain an Operating Statement Analysis report for
each Mortgaged Property and REO Property (to the extent prepared by and
received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Loan). The
Operating Statement Analysis report for each Mortgaged Property (other than
any such Mortgaged Property which is REO Property or constitutes security for
a Specially Serviced Loan) is to be updated by the Servicer and such
updated report shall be delivered to the Trustee within thirty days after
receipt by the Servicer of updated operating statements for such Mortgaged
Property. The Servicer will use the "Normalized" column from the NOI
Adjustment Worksheet to update the Operating Statement Analysis report and
will use any operating statements received with respect to any Mortgaged
Property (other than any such Mortgaged Property which is an REO Property or
constitutes security for a Specially Serviced Loan) to update the Operating
Statement Analysis report for such Mortgaged Property, such updates shall be
completed and copies thereof sent to the Trustee within thirty days after
receipt of the necessary information.
The Special Servicer will be required pursuant to Section 3.12(g) to
deliver to the Servicer the information required pursuant to this Section
3.12(d) with respect to Specially Serviced Loans and REO Loans on or before
March 30 of each year, commencing on March 30, 1998, and within ten days
after its receipt of any operating statement for any related Mortgaged
Property or REO Property.
(e) No later than 1:00 p.m. New York City time on each Servicer
Remittance Date, the Servicer shall prepare and deliver to the Trustee, the
Rating Agencies and the Special Servicer, a Watch List of all Loans that the
Servicer has determined are in jeopardy of becoming a Specially Serviced
Loan. For this purpose, Loans that are in jeopardy of becoming a Specially
Serviced Loans shall include, without limitation: (i) Loans having a current
Debt Service Coverage Ratio that is 80% or less of the Debt Service Coverage
Ratio as of the Cut-off Date or having a Debt Service Coverage Ratio that is
less than 1.00x, (ii) Loans as to which any required inspection of the
related Mortgaged Property conducted by the Servicer indicates a problem that
the Servicer determines can reasonably be expected to materially adversely
affect the cash flow generated by such Mortgaged Property, (iii) Loans which
have come to the Servicer's attention in the performance of its duties under
this Agreement, that (A) any tenant occupying 25% or more of the space in the
related Mortgaged Property has vacated (without being replaced by a
comparable tenant and lease) or been the subject of bankruptcy or similar
proceedings or (B) relate to a Borrower or an Affiliate that is the subject
of a bankruptcy or similar proceeding, (iv) Loans that are at least one Due
Period delinquent in payment, and (v) Loans that are within 60 days of
maturity.
The Special Servicer shall report to the Servicer any of the foregoing
events promptly upon the Special Servicer having knowledge of such event. In
addition, in connection with their servicing of the Loans, the Servicer and
the Special Servicer shall provide to each other and to the Trustee written
notice of any event that comes to their knowledge with respect to a Loan or
REO Property that the Servicer or the Special Servicer, respectively,
determines, in accordance with Servicing Standards, would have a material
adverse effect on such Loan or REO Property, which notice shall include an
explanation as to the reason for such material adverse effect.
(f) At least three Business Days prior to each Servicer Remittance
Date, the Special Servicer shall deliver, or cause to be delivered, to the
Servicer and, upon the request of the Trustee, the Depositor or any Rating
Agency, to any such requesting party, the
following reports with respect to the Specially Serviced Loans (and, if
applicable, the related REO Properties), providing the required information
as of the related Determination Date: (i) a Delinquent Loan Status Report;
(ii) an Historical Loss Estimate Report; (iii) an Historical Loan
Modification Report; (iv) an REO Status Report; (v) Comparative Financial
Status Reports with respect to all Specially Serviced Loans; and (vi) a Watch
List. Such reports shall be presented in writing and on a computer readable
medium.
(g) The Special Servicer shall deliver or cause to be delivered to the
Servicer and, upon the request of the Trustee, the Depositor, or Rating
Agency, to any such requesting party, the following materials, in each case
to the extent that such materials or the information on which they are based
have been received by the Special Servicer:
(i) Annually, on or before April 30 of each year, commencing in
April 1998, with respect to each Specially Serviced Loan and REO Loan, an
Operating Statement Analysis for the related Mortgaged Property or REO
Property as of the end of the preceding calendar year, together with copies
of the operating statements and rent rolls for the related Mortgaged Property
or REO Property as of the end of the preceding calendar year. The Special
Servicer shall use its best reasonable efforts (but shall not be required to
institute litigation) to obtain said annual operating statements and rent
rolls with respect to each Mortgaged Property constituting security for a
Specially Serviced Loan and each REO Property, which efforts shall include
sending a letter to the related Borrower or other appropriate party each
quarter (followed up with telephone calls) requesting such annual operating
statements and rent rolls until they are received.
(ii) Within 10 days of receipt by the Special Servicer of any
annual operating statements with respect to any Mortgaged Property relating
to a Specially Serviced Loan, or at least six months of operating information
with respect to any REO Property, an NOI Adjustment Worksheet for such
Mortgaged Property or REO Property (with the annual operating statements
attached thereto as an exhibit) shall be completed and forwarded to the
Servicer.
The Special Servicer shall maintain an Operating Statement Analysis
report for each Mortgaged Property securing a Specially Serviced Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Loan or is a REO Property
is to be updated by the Special Servicer and such updated report delivered to
the Servicer within ten days after receipt by the Special Servicer of updated
operating statements for each such Mortgaged Property. The Special Servicer
will use the "Normalized" column from the NOI Adjustment Worksheet to update
the Operating Statement Analysis report and will use any operating statements
received with respect to any Mortgaged Property which constitutes security
for a Specially Serviced Loan or is a REO Property to update the Operating
Statement Analysis report for such Mortgaged Property, such updates shall be
completed and copies thereof sent to the Servicer within ten days after
receipt of the necessary information.
(h) The Servicer and the Special Servicer hereby agree to deliver to
each Rating Agency any information such Rating Agency may reasonably request.
The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by
the Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.13. Annual Statement as to Compliance.
---------------------------------
The Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Depositor and to the Rating Agencies on or
before March 15 of each year, beginning with March 15, 1998, an Officer's
Certificate stating, as to each signatory thereof, (i) that a review of the
servicing operations of the reporting person during the preceding calendar
year (or such shorter period from the Closing Date to the end of the related
calendar year) and of its performance under this Agreement has been made
under such officer's supervision, (ii) that, to the best of such officer's
knowledge, based on such review, the reporting person has fulfilled all of
its obligations under this Agreement in all material respects throughout such
year (or such shorter period), or, if there has been a material default in
the fulfillment of any such obligation, specifying each such default known to
such officer, the nature and status thereof and what action it proposes to
take with respect thereto, (iii) that, to the best of such officer's
knowledge, each related sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, and (iv)
whether it has received any notice regarding qualification, or challenging
the status, of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC from the
IRS or any other governmental agency or body.
SECTION 3.14. Reports by Independent Public Accountants.
-----------------------------------------
On or before March 15 of each year, beginning with March 15, 1998, the
Servicer and the Special Servicer (the "reporting person") each at the
reporting person's expense shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to
the Trustee, the Depositor and the Rating Agencies, to the effect that such
firm has examined the servicing operations of the reporting person for the
previous calendar year (or portions thereof) and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program ("USAP") for Mortgage Bankers or the Audit Program for
Mortgages (the "Audit Program") serviced for FHLMC, such firm confirms that
the Servicer or the Special Servicer,as the case may be, complied with the
minimum servicing standards identified in USAP or the Audit Program, in all
material respects, except for such significant exceptions or errors in
records that, in the opinion of such firm, the USAP or the Audit Program
requires it to report.
In rendering such statement, such firm may rely, as to matters relating
to direct servicing of mortgage loans by Sub-Servicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Audit Program for Mortgage Bankers (rendered within one year
of such statement) of independent public accountants with respect to the
related Sub- Servicer. Each reporting person shall obtain from the related
accountants, or shall prepare, an electronic version of each Accountant's
Statement and provide such electronic version to the Trustee for filing in
accordance with the procedures set forth in Section 3.28 hereof. With
respect to any electronic version of an Accountant's Statement prepared by
the reporting person, the reporting person shall receive written
confirmation from the related accountants that such electronic version is a
conformed copy of the original Accountant's Statement.
SECTION 3.15. Access to Certain Information.
-----------------------------
Each of the Servicer and the Special Servicer shall provide or cause to
be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer, or to the Special Servicer,
as applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law.
Such access shall be afforded without charge (except that the Servicer
and the Special Servicer may charge a reasonable fee for copies and out-of-
pocket costs) but only upon reasonable prior written request and during
normal business hours at the offices of the Servicer or the Special Servicer,
as the case may be, designated by it. Nothing in this Section 3.15 shall
detract from the obligation of the Servicer and the Special Servicer to
observe any applicable law prohibiting disclosure of information with respect
to the Mortgagors, and the failure of the Servicer or the Special Servicer to
provide access as provided in this Section 3.15 as a result of such
obligation shall not constitute a breach of this Section 3.15. The Servicer
and the Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Servicer or
the Special Servicer is restricted by license or contract from disclosing.
Notwithstanding the foregoing, the Servicer and the Special Servicer shall
maintain separate from such confidential information and intellectual
property, all documentation regarding the Loans that is not confidential.
SECTION 3.16. Title to REO Property; REO Account.
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(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee (or its nominee) on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property within two years after the Trust Fund acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time
(an "REO Extension") by the Internal Revenue Service to sell such REO Property
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or (ii) obtains for the Trustee and the Servicer an Opinion of Counsel (the
cost of which shall be paid as a Servicing Advance), addressed to the
Trustee and the Servicer, to the effect that the holding by the Trust Fund
of such REO Property subsequent to the second anniversary of such
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC constituted thereby as defined in Section 860F of the Code or cause
either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interests or
Certificates are outstanding. If the Special Servicer is granted the REO
Extension or obtains the Opinion of Counsel contemplated by clause (ii)
above, the Special Servicer shall sell such REO Property within such period
longer than two years as is permitted by such REO Extension or such Opinion
of Counsel. Any expense incurred by the Special Servicer in connection with
its being granted the REO Extension or its obtaining the Opinion of Counsel
contemplated by clause (ii) above shall be an expense of the Trust Fund
payable out of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its
own funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property.
The REO Account shall be an Eligible Account. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within one (1)
Business Day after receipt, all REO Revenues, Insurance and Condemnation
Proceeds and Liquidation Proceeds received in respect of an REO Property.
Funds in the REO Account may be invested only in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit
in the REO Account relating to such REO Property. On each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit
into the Certificate Account the aggregate of all amounts received in respect
of each REO Property during the most recently ended Due Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided, however, that the Special Servicer
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may retain in such REO Account, in accordance with the Servicing Standards,
such portion of such balance as may be necessary to maintain a reasonable
reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on each Determination Date, the Special Servicer shall provide the
Servicer with a written accounting of amounts deposited in the Certificate
Account on such date.
(d) The Special Servicer shall keep and maintain separate records, on a
property-
by-property basis, for the purpose of accounting for all deposits to, and
withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
--------------------------
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by the Trust Fund of
any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things
in connection therewith as are in the best interests of and for the benefit
of the Certificateholders (as determined by the Special Servicer in its good
faith and reasonable judgment) and, consistent therewith, shall withdraw from
the REO Account, to the extent of amounts on deposit therein with respect to
such REO Property, funds necessary for the proper operation, management,
leasing and maintenance of such REO Property, including, without limitation:
(i) all Insurance Policy premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such
REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee and the
Depositor) if such advances would, if made, constitute Nonrecoverable
Servicing Advances. The Special Servicer shall give the Servicer and the
Trustee not less than five Business Days' notice, together with all
information reasonably requested by the Servicer (upon which the Servicer may
conclusively rely) to the extent in the possession of the Special Servicer or
readily obtainable by the Special Servicer before the date on which the
Servicer is requested to make any Servicing Advance with respect to an REO
Property; provided, however, that only two
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Business Days' notice shall be required in respect of Servicing Advances
required to be made on an urgent or emergency basis (which may include,
without limitation, Servicing Advances required to make tax or insurance
payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon,
and then only if more than 10% of the construction of such building or
other improvement was completed before default on the related Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any
date more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund,
in which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel. Except as limited above in this Section 3.17 and by
Section 3.17(c), the Special Servicer shall be permitted to cause the Trust
Fund to earn "net income from foreclosure property," subject to the Servicing
Standards.
(c) The Special Servicer shall contract with any Independent Contractor
for the operation and management of any REO Property within 90 days of the
Acquisition Date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection
(a) hereof, and (B) remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon
receipt;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
REO Property.
The Special Servicer shall be entitled to enter into any agreement with
any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification.
SECTION 3.18. Sale of Defaulted Loans and REO Properties.
------------------------------------------
(a) Each of the Servicer and the Special Servicer may sell or purchase,
or permit the sale or purchase of, a Defaulted Loan or REO Property only on
the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Section 2.03(b) and
Section 9.01.
(b) In the event that any Loan becomes a Defaulted Loan and the Special
Servicer has determined in good faith that such Defaulted Loan will become
subject to foreclosure proceedings, the Special Servicer shall promptly so
notify in writing the Trustee and the Servicer. The Special Servicer (or the
Servicer, if the Servicer does not exercise its option, or the Directing
Certificateholder, if the Servicer does not exercise its option) may at its
option purchase such Defaulted Loan from the Trust Fund, at a price equal to
the Purchase Price. The Purchase Price for any Defaulted Loan purchased
hereunder shall be deposited into the Certificate Account, and the Trustee,
upon receipt of an Officer's Certificate from the Special Servicer to the
effect that such deposit has been made, shall release or cause to be released
to the Special Servicer, the Servicer or the Directing Certificateholder,
as the case may be, the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be necessary to vest in the Special Servicer, the Servicer or the
Directing Certificateholder (in that order), as the case may be,
ownership of such Defaulted Loan.
(c) The Special Servicer may offer to sell any Defaulted Loan not
otherwise purchased by the Special Servicer or the Servicer pursuant to
subsection (b) above, if and when the Special Servicer determines, consistent
with the Servicing Standards, that such a sale would produce a greater
recovery on a present value basis than would liquidation of the related
Mortgaged Property. Such offering shall be made in a commercially reasonable
manner for a period of not less than 20 days or more than 90 days. The
Special Servicer shall accept the highest cash bid received from any Person
for such Defaulted Loan in an amount at least equal to the Purchase Price
therefor; provided, that in the absence of any such bid, the Special Servicer
--------
shall accept the highest cash bid received from any Person that is
determined by the Special Servicer to be a fair price for such Defaulted
Loan. In the absence of any bid determined as provided below to be fair,
the Special Servicer shall proceed with respect to such Defaulted Loan in
accordance with Section 3.09.
The Special Servicer shall use reasonable efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). Such
solicitation shall be made in a commercially reasonable manner for a period
of not less than 90 days or more than 270 days. The Special Servicer shall
accept the highest cash bid received from any Person for such REO Property in
an amount at least equal to the Purchase Price therefor; provided that in the
--------
absence of any such bid, the Special Servicer shall accept the highest cash
bid received from any Person that is determined by the Special Servicer to
be a fair price for such REO Property. If the Special Servicer reasonably
believes that it will be unable to realize a fair price for any REO Property
within the time constraints imposed by Section 3.16(a), then the Special
Servicer shall dispose of such REO Property upon such terms and conditions
as the Special Servicer shall deem necessary and desirable to maximize the
recovery thereon under the circumstances and, in connection therewith, shall
accept the highest outstanding cash bid, regardless of from whom received.
In the event that the Special Servicer determines with respect to any REO
Property that the offers being made with respect thereto are not in the best
interests of the Certificateholders and that the end of the two-year period
referred to in Section 3.16(a) with respect to such REO Property is
approaching, the Special Servicer shall seek an extension of such two-year
period in the manner described in Section 3.16(a); provided, however, that
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the Special Servicer shall use its best efforts, consistent with the
Servicing Standards, to sell any REO Property prior to two years prior to the
Rated Final Distribution Date.
The Special Servicer shall give the Trustee and the Servicer not less
than three Business Days' prior written notice of its intention to sell any
Defaulted Loan or REO Property. No Interested Person shall be obligated to
submit a bid to purchase any Defaulted Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Loan or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Loan or REO Property, as the case may be, for purposes of Section 3.18(c),
shall be determined by the Special Servicer, if the highest bidder is a
Person other than an Interested Person, and by the Trustee, if the highest
bidder is an Interested Person. In determining whether any bid received from
an Interested Person represents a fair price for any Defaulted Loan or any
REO Property, the Trustee may conclusively rely on the opinion of an
Appraiser or other expert in real estate matters retained at the expense of
the Trust Fund by (i) the Servicer, if such Interested Person is the Special
Servicer or an Affiliate thereof or (ii) the Special Servicer, in any other
case. In determining whether any bid constitutes a fair price for any
Defaulted Loan or any REO Property, such Appraiser or other expert in real
estate matters shall be instructed to take into account, as applicable, among
other factors, the period and amount of any delinquency on the affected
Defaulted Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation
to dispose of any REO Property within the time period specified in
Section 3.16(a). The Purchase Price for any Defaulted Loan or REO Property
shall in all cases be deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Loan or
REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Loan or any REO Property shall be final
and without recourse to the Trustee or the Trust Fund, except as shall be
customary in deeds of real property and if such sale is consummated in
accordance with the terms of this Agreement, neither the Special Servicer nor
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
SECTION 3.19. Additional Obligations of the Servicer and Special
--------------------------------------------------
Servicer; Inspections; Appraisals.
- ---------------------------------
(a) The Servicer (or, with respect to Specially Serviced Loan and REO
Properties, the Special Servicer) shall physically inspect or cause to be
physically inspected (at its own expense) each Mortgaged Property at such
times and in such manner as are consistent with the Servicing Standards, but
in any event shall inspect each Mortgaged Property with an Allocated Loan
Amount of (A) $2,000,000 or more at least once every 12 months and (B) less
than $2,000,000 at least once every 24 months, in each case commencing in
June 1997 (or at such lesser frequency as each Rating Agency shall have
confirmed in writing to the Servicer, will not result a downgrade,
qualification or withdrawal of the then current ratings assigned to any Class
of the Certificates) and (C) if the Loan (i) becomes a Specially Serviced
Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0x or (iii) is
delinquent for 60 days, each related Mortgaged Property shall be inspected by
the Special Servicer as soon as practicable and thereafter at least every 12
months for so long as such condition exists. The Servicer or Special
Servicer, as applicable, shall send to the Rating Agencies, within 20 days of
completion, each inspection report for any Significant Loans.
(b) With respect to each Loan that allows the Special Servicer (on
behalf of the Trust Fund) to terminate, or cause the related Borrower to
terminate, the related Manager, upon the occurrence of certain events
specified in such Mortgage Loan, the Special Servicer shall enforce the
Trustee's rights with respect to the Manager under the related Loan and
Management Agreement, provided, that, if such right accrues under the related
Loan or Management Agreement only because of the occurrence of the related
Anticipated Repayment Date, if any, the Special Servicer shall irrevocably
waive such right with respect to such date. In the event the Special Servicer
is entitled to terminate the Manager, the Special
Servicer shall promptly give notice to the Directing Certificateholder and
each Rating Agency. In accordance with the Servicing Standards, the Special
Servicer shall cause the Borrower to terminate the Manager, and to recommend
a Successor Manager (meeting the requirements set forth below) only if the
Special Servicer determines in its reasonable discretion that such
termination is not likely to result in successful litigation against the
Trust Fund by such Manager or the related Borrower, or create a defense to
the enforcement of remedies under such Mortgage Loan.
For any Significant Loan, the Special Servicer shall effect such
termination only if the Special Servicer has in the case of any Specially
Serviced Loan received a written confirmation from each of the Rating
Agencies that the appointment of such Successor Manager would not cause such
Rating Agency to withdraw, downgrade or qualify any of the then-current
ratings on the Certificates. In the event a Manager is otherwise terminated
or resigns under the related Loan or Management Agreement and the related
Borrower does not appoint a Successor Manager, the Special Servicer shall use
its best efforts to retain a Successor Manager (or the recommended Successor
Manager, if any) on terms substantially similar to the Management Agreement
or, failing that, on terms as favorable to the Trust Fund as can reasonably
be obtained by the Special Servicer. For the purposes of this paragraph, a
"Successor Manager" shall be reasonably acceptable to the Special Servicer
and a professional management corporation or business entity which (i)
manages, and is experienced in managing, other comparable commercial
properties, (ii) will not result in a downgrade, qualification or withdrawal
of the then current ratings assigned to the Certificates by each Rating
Agency and (iii) otherwise satisfies any criteria set forth in the Mortgage
and related documents.
(c) If required to obtain an Appraisal in connection with an Appraisal
Reduction Event, the Special Servicer shall be required to have received such
Appraisal within 60 days after the occurrence of such Appraisal Reduction
Event (or the date of such Appraisal Reduction Event itself, in the case
where the time period between (i) the occurrence of the event that, with the
passage of time, would become such Appraisal Reduction Event and (ii) such
Appraisal Reduction Event itself exceeds 60 days). Upon receipt, the Special
Servicer shall send a copy of such Appraisal to the Certificate Owners of the
Class I, Class J and Class K Certificates; provided, however, that as to each
such Appraisal, if beneficial ownership of the Class I, Class J and Class K
Certificates resides in more than one Certificate Owner, the Special Servicer
shall be responsible only for the expense of providing the first such copy
thereof and shall be entitled to reimbursement from the Trust Fund for the
expense of any additional copies so provided. If such Appraisal is not
received by such date or if, for any Loan with a Stated Principal Balance of
$1,000,000 or less, the Special Servicer elects not to perform an internal
valuation or obtain an Appraisal, the Appraisal Reduction for such Loan shall
be conclusively established to be 35% of the Stated Principal Balance of such
Loan as of the date of the related Appraisal Reduction Event. On the first
Determination Date occurring on or after the delivery of such Appraisal, the
Special Servicer will be required to calculate and report to the Servicer,
and the Servicer will report to the Trustee, the Appraisal Reduction to take
into account such Appraisal, internal valuation or
percentage calculation of the Appraisal Reduction Amount. The Servicer may
conclusively rely on any report by the Special Servicer of an Appraisal
Reduction.
With respect to each Loan as to which an Appraisal Reduction Event has
occurred (unless such Loan has become a Corrected Loan and has remained
current for twelve consecutive Monthly Payments (for such purposes taking
into account any amendment or modification of such Loan)), the Special
Servicer shall, within 30 days of each annual anniversary of such Appraisal
Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), or with respect to any Loan with an outstanding principal balance
less than $2,000,000, perform an internal valuation or obtain an Appraisal
(which may be an update of a prior Appraisal), the cost of which shall be
paid by the Servicer as a Servicing Advance. Upon receipt, the Special
Servicer shall send a copy of such Appraisal to the Certificate Owners of the
Class I, Class J and Class K Certificates; provided, however, that as to each
such Appraisal, if beneficial ownership of the Class I, Class J and Class K
Certificates resides in more than one Certificate Owner, the Special Servicer
shall be responsible only for the expense of providing the first such copy
thereof and shall be entitled to reimbursement from the Trust Fund for the
expense of any additional copies so provided. Based upon such Appraisal,
internal valuation or percentage calculation of the Appraisal Reduction, as
set forth in the first paragraph of this Section 3.19(c), as the case may be,
the Special Servicer shall redetermine and report to the Trustee and the
Servicer the amount of the Appraisal Reduction with respect to such Loan, and
such redetermined Appraisal Reduction shall replace the prior Appraisal
Reduction with respect to such Loan. Notwithstanding the foregoing, the
Special Servicer will not be required to obtain an Appraisal or perform an
internal valuation, as the case may be, with respect to a Loan which is the
subject of an Appraisal Reduction Event if the Special Servicer has obtained
an Appraisal with respect to the related Mortgaged Property within the 12-
month period immediately prior to the occurrence of such Appraisal Reduction
Event. Instead, the Special Servicer may use such prior Appraisal in
calculating any Appraisal Reduction with respect to such Loan.
With respect to each Loan as to which an Appraisal Reduction Event has
occurred and which has become a Corrected Loan and has remained current for
twelve consecutive Monthly Payments (for such purposes taking into account
any amendment or modification of such Loan), and with respect to which no
other Appraisal Reduction Event has occurred and is continuing, the Special
Servicer may within 30 days after the date of such twelfth Monthly Payment,
order an Appraisal (which may be an update of a prior Appraisal), or with
respect to any Loan with an outstanding principal balance less than
$2,000,000, perform an internal valuation or obtain an Appraisal (which may
be an update of a prior Appraisal), the cost of which shall be paid by the
Servicer as a Servicing Advance. Based upon such Appraisal or internal
valuation, the Special Servicer shall redetermine and report to the Trustee
and the Servicer the amount of the Appraisal Reduction with respect to such
Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
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(a) Subject to Sections 3.20(b) through 3.20(i) below and Section 3.26,
the Special Servicer may, on behalf of the Trustee, agree to any
modification, waiver or amendment of any term of any Loan without the consent
of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Loan shall be in
writing and shall be effected in accordance with the Servicing Standards.
(c) The Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Loan that
is not a Specially Serviced Loan if such modification, waiver or amendment
would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and other
amounts payable as additional servicing compensation) payable
thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(e), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property
without a corresponding Principal Prepayment in an amount not less than
the fair market value (as determined by an appraisal by an Appraiser
delivered to the Special Servicer at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely) of
the property to be released; or
(iv) in the judgment of the Special Servicer, otherwise
materially impair the security for such Loan or reduce the likelihood of
timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(b), the Special Servicer may (i)
reduce the amounts owing under any Specially Serviced Loan by forgiving
principal, accrued interest and/or any Prepayment Premium or Yield
Maintenance Charge, (ii) reduce the amount of the Monthly Payment on any
Specially Serviced Loan, including by way of a reduction in the related
Mortgage Rate, (iii) forbear in the enforcement of any right granted under
any Note or Mortgage relating to a Specially Serviced Loan, (iv) waive Excess
Interest if such waiver conforms to the Servicing Standards and/or (v) accept
a Principal Prepayment during any Lockout Period; provided that (x) the
related Borrower is in default with respect to the Specially Serviced Loan
or, in the judgment of the Special Servicer, such default is
reasonably foreseeable and (y) Section 3.20(e) is true with respect to the
related Specially Serviced Loan.
(e) The Special Servicer shall not consent to, make or permit (i) any
modification with respect to any Loan that would change the Mortgage Rate,
reduce or increase the principal balance (except for reductions resulting
from actual payments of principal) or change the final maturity date of such
Loan unless, both (A) the related Mortgagor is in default with respect to the
Loan or, in the judgment of the Special Servicer, such default is reasonably
foreseeable and (B) in the sole good faith judgment of the Special Servicer,
such modification would increase the recovery on the Loan to
Certificateholders on a present value basis (the relevant discounting of
amounts that will be distributable to Certificateholders to be performed at
the related Mortgage Rate) or (ii) any modification, waiver or amendment of
any term of any Loan that would both (A) effect an exchange or reissuance of
such Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder with an effective date or
proposed effective date that applies or would apply to such waiver,
modification or amendment) and (B) cause the Trust Fund to fail to qualify as
a REMIC under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions.
However, the Special Servicer will not be permitted to extend the date
on which any Balloon Payment is scheduled to be due unless the Special
Servicer has obtained an Appraisal of the related Mortgaged Property in
connection with such extension, which Appraisal supports the determination of
the Special Servicer contemplated by clause (i)(B) of the immediately
preceding paragraph. In no event shall the scheduled due date for a Balloon
Payment be extended for a period in excess of 12 months per extension or 36
months in the aggregate, without the consent of the Extension Advisor
pursuant to Section 3.25 herein.
The determination of the Special Servicer contemplated by clause (i)(B)
of the first paragraph of this Section 3.20(e) shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the
Servicer and describing in reasonable detail the basis for the Special
Servicer's determination and the considerations of the Special Servicer
forming the basis of such determination (which shall include but shall not be
limited to information, to the extent available, such as related income and
expense statements, rent rolls, occupancy status and property inspections,
and shall include an Appraisal of the related Loan or Mortgaged Property, the
cost of which Appraisal shall be advanced by the Servicer as a Servicing
Advance).
(f) In no event will the Special Servicer be permitted to (i) extend
the maturity date of a Loan beyond a date that is two years prior to the
Rated Final Distribution Date; (ii) extend the maturity date of any Loan at
an interest rate less than the lower of (a) the interest rate in effect prior
to such extension or (b) the then prevailing interest rate for comparable
loans, as determined by the Special Servicer by reference to available
indices for commercial mortgage lending; (iii) if the Loan is secured by a
ground lease, extend the maturity date of
such Loan beyond a date which is 10 years prior to the expiration of the term
of such ground lease; (iv) reduce the Mortgage Rate to a rate below the
lesser of (x) 7.56% per annum and (y) the then prevailing interest rate for
comparable loans, as determined by the Special Servicer by reference to
available indices for commercial mortgage lending; or (v) defer interest due
on any Loan in excess of 5% of the Stated Principal Balance of such Loan.
(g) Neither the Servicer nor the Special Servicer may permit or modify
a Loan to permit a voluntary Principal Prepayment of a Loan (other than a
Specially Serviced Loan) on any day other than its Due Date, (i) unless
the Servicer or Special Servicer also collects interest thereon through
the Due Date following the date of such Principal Prepayment, (ii) unless
otherwise permitted under the related Loan documents, or (iii) unless such
Principal Prepayment would not result in a Prepayment Interest Shortfall.
(h) The Special Servicer may, as a condition to granting any request by
a Mortgagor for consent, modification, waiver or indulgence or any other
matter or thing, the granting of which is within its discretion pursuant to
the terms of the instruments evidencing or securing the related Loan and is
permitted by the terms of this Agreement, require that such Mortgagor pay to
it (i) as additional servicing compensation, a reasonable or customary fee
for the additional services performed in connection with such request, and
(ii) any related costs and expenses incurred by it. In no event shall the
Special Servicer be entitled to payment for such fees or expenses unless such
payment is collected from the related Mortgagor.
(i) The Special Servicer shall notify the Servicer, any related Sub-
Servicers and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Loan (including fees charged the Mortgagor) and
the date thereof, and shall deliver to the Custodian for deposit in the
related Mortgage File, an original counterpart of the agreement relating to
such modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. The Special Servicer shall
notify the Rating Agencies of any modification, waiver or amendment of any
term of any Significant Loan. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Loan is effected shall
be made available for review upon prior request during normal business hours
at the offices of the Special Servicer pursuant to Section 3.15 hereof.
SECTION 3.21. Transfer of Servicing Between Servicer and Special
--------------------------------------------------
Servicer; Record Keeping; Asset Status Report.
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(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Loan, the Servicer shall immediately give notice thereof to
the Special Servicer, the Trustee, the Certificate Owners of the Class I,
Class J and Class K Certificates and each Rating Agency, shall deliver copies
of the related Mortgage File and Credit File to the Special Servicer and the
Directing Certificateholder and shall use its reasonable best efforts to
provide the Special Servicer with all information, documents and records
(including records stored electronically on computer tapes, magnetic discs
and the like) relating to such
Loan that are in the possession of the Servicer or available to the Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto.
The Servicer shall use its reasonable best efforts to comply with the
preceding sentence within five (5) Business Days of the occurrence of each
related Servicing Transfer Event and in any event shall continue to act as
Servicer and administrator of such Loan until the Special Servicer has
commenced the servicing of such Loan. The Trustee shall deliver to the
Underwriter, the Initial Purchaser and to each Holder of a Class J and Class
K Certificate a copy of the notice of such Servicing Transfer Event provided
by the Servicer to the Special Servicer pursuant to this Section.
Upon determining that a Specially Serviced Loan (other than an REO Loan)
has become current and has remained current for three consecutive Monthly
Payments (provided no additional Servicing Transfer Event is foreseeable in
the reasonable judgment of the Special Servicer) and that no other Servicing
Transfer Event is continuing with respect thereto, the Special Servicer shall
immediately give notice thereof and shall return the related Mortgage File
and Credit File to the Servicer and, upon giving such notice and returning
such Mortgage File and Credit File to the Servicer, the Special Servicer's
obligation to service such Corrected Loan shall terminate and the obligations
of the Servicer to service and administer such Loan shall re-commence.
(b) In servicing any Specially Serviced Loan, the Special Servicer will
provide to the Trustee originals of documents included within the definition
of "Mortgage File" for inclusion in the related Mortgage File (with a copy of
each such original to the Servicer), and provide the Servicer with copies of
any additional related Loan information including correspondence with the
related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Servicer a written statement (upon which the Servicer may
conclusively rely) describing, on a loan-by-loan and property-by-property
basis, (1) the information described in clause (vii) of Section 4.02(a) with
respect to each Specially Serviced Loan and the information described in
clause (viii) of Section 4.02(a) with respect to each REO Property, (2) the
amount of all payments, Insurance and Condemnation Proceeds and Liquidation
Proceeds received with respect to each Specially Serviced Loan during the
related Due Period, and the amount of all REO Revenues, Insurance and
Condemnation Proceeds and Liquidation Proceeds received with respect to each
REO Property during the related Due Period, (3) the amount, purpose and date
of all Servicing Advances made by the Servicer with respect to each Specially
Serviced Loan and REO Property during the related Due Period, (4) the
information described in clauses (v), (vii), (viii), (xi), (xvi) and (xvii)
of Section 4.02(a) and (5) such additional information relating to the
Specially Serviced Loan and REO Properties as the Servicer reasonably
requests to enable it to perform its responsibilities under this Agreement
which is in the Special Servicer's possession or is reasonably obtainable by
the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Loan and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special
Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a Loan,
the Special Servicer shall deliver to each Rating Agency, the Servicer and
the Directing Certificateholder a report (the "Asset Status Report")
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with respect to such Loan and the related Mortgaged Property. Such Asset
Status Report shall set forth the following information to the extent
reasonably determinable:
(i) summary of the status of such Specially Serviced Loan;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof; and
(v) such other information as the Special Servicer deems
relevant in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status Report,
the Directing Certificateholder does not disapprove such Asset Status Report
in writing, the Special Servicer shall implement the recommended action as
outlined in such Asset Status Report; provided, however, that
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the Special Servicer may not take any action that is contrary to applicable
law or the terms of the applicable Loan documents. If the Directing
Certificateholder disapproves such Asset Status Report, the Special Servicer
will revise such Asset Status Report and deliver to the Directing
Certificateholder, the Rating Agencies and the Servicer a new Asset Status
Report as soon as practicable, but in no event later than 30 days after such
disapproval.
The Special Servicer shall revise such Asset Status Report as described
above in this Section 3.21(e) until the Directing Certificateholder shall
fail to disapprove such revised Asset Status Report in writing within ten
(10) Business Days of receiving such revised Asset Status Report or until the
Special Servicer makes one of the determinations described below. The
Special Servicer may, from time to time, modify any Asset Status Report it
has previously delivered and implement such report, provided such report
shall have been prepared, reviewed and not rejected pursuant to the terms of
this Section. Notwithstanding
the foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten
(10) Business Day period if the Special Servicer has reasonably determined
that failure to take such action would materially and adversely affect the
interests of the Certificateholders and it has made a reasonable effort to
contact the Directing Certificateholder and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards.
Upon making such determination, the Special Servicer shall notify the
Trustee of such rejection and deliver to the Trustee a proposed notice to
Certificateholders which shall include a copy of the Asset Status Report, and
the Trustee shall send such notice to all Certificateholders. If the
majority of such Certificateholders, as determined by Voting Rights, fail,
within 5 days of the Trustee's sending such notice, to reject such Asset
Status Report, the Special Servicer shall implement the same. If the Asset
Status Report is rejected by a majority of the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(e). The Trustee shall be entitled to reimbursement from
the Trust Fund for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the Mortgagor
for any Specially Serviced Loan and take such actions consistent with the
Servicing Standards and the related Asset Status Report. The Special
Servicer shall not take any action inconsistent with the related Asset Status
Report, unless such action would be required in order to act in accordance
with the Servicing Standards.
No direction of the Directing Certificateholder shall (a) require or
cause the Special Servicer to violate the terms of a Specially Serviced Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and
to maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-
Tier REMIC, or (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (c) expose the
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Seller, the
Trust Fund, the Trustee or their Affiliates, officers, directors, employees
or agents to any claim, suit or liability or (d) materially expand the scope
of the Special Servicer's or the Servicer's responsibilities under this
Agreement.
(f) Upon receiving notice of (i) the filing of a case under any present
or future federal or state bankruptcy, insolvency or similar law or the
commencing of any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings with respect to a Loan or the related
Mortgagor, (ii) the existence of a material non-payment default or (iii) the
request by a Mortgagor for the amendment or modification of a Loan other than
an amendment or modification provided for in the second paragraph in Section
3.20(a), the Servicer shall immediately give notice thereof, and shall
deliver copies of the related Mortgage File and Credit File to the Special
Servicer and shall use its reasonable best efforts
to provide the Special Servicer with all information relating to the Loan and
reasonably requested by the Special Servicer to enable it to negotiate with
the related Mortgagor and prepare for any such proceedings. The Servicer
shall use its reasonable best efforts to comply with the preceding sentence
within five (5) Business Days of the occurrence of each such event, and upon
receiving such documents and information, the Special Servicer shall use its
reasonable best efforts to cause the related Mortgagor to cure any default
and/or remedy any such event, work out or modify the Loan consistent with the
terms of this Agreement, and/or prepare for such proceedings.
Notwithstanding the foregoing, the occurrence of any of the above-referenced
events shall not in and of itself be considered a Servicing Transfer Event.
SECTION 3.22. Sub-Servicing Agreements.
------------------------
(a) The Servicer and the Special Servicer may enter into Sub-Servicing
Agreements to provide for the performance by third parties of any or all of
its respective obligations under Articles III and IV hereof; provided that
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the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Servicer
or the Special Servicer shall for any reason no longer act in such capacity
hereunder (including, without limitation, by reason of an Event of Default),
the Trustee or its designee shall thereupon assume or may elect not to
assume all of the rights and, except to the extent they arose prior to the
date of assumption, obligations of the Servicer or Special Servicer, as
applicable under such agreement, or, alternatively, may act in accordance
with Section 7.02 hereof under the circumstances described therein; (iii)
provides that the Trustee for the benefit of the Certificateholders shall be
a third-party beneficiary under such Sub-Servicing Agreement, but that
(except to the extent the Trustee or its designee assumes the obligations of
the Servicer or the Special Servicer, as applicable, thereunder as
contemplated by the immediately preceding clause (ii)) none of the Trust
Fund, the Trustee, any successor Servicer, Special Servicer or any
Certificateholder shall have any duties under such Sub-Servicing Agreement
or any liabilities arising therefrom; (iv) except with respect to the
Seller- Servicer Agreement, permits any purchaser of a Loan or the Trustee
pursuant to this Agreement to terminate such Sub-Servicing Agreement with
respect to such purchased Loan at its option and without penalty; (v) does
not permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund and (vi) if such Sub-Servicing
Agreement is the Seller-Servicer Agreement, provides that upon termination
of the Trust Fund, the owner of the Loans shall, with respect to those
Loans serviced by each Seller-Servicer, enter into a servicing agreement
with such Seller-Servicer in the form of the related "Prior Servicing
Agreement" (as defined in the Seller-Servicer Agreement) or shall pay
such Seller-Servivcer the termination fee that would be payable thereunder
Any successor Servicer or Special Servicer hereunder, upon becoming successor
Servicer or Special Servicer, as applicable, shall have the right to be
assigned and shall have the right to assume any Sub-Servicing Agreements
from the predecessor Servicer or Special Servicer, as applicable. Upon a
termination of the Servicer pursuant to this Agreement, the successor to the
Servicer (other than the Trustee or its designee) shall automatically
succeed to the rights and obligations of the prior Servicer under the
Seller-Servicer Agreement, subject to the termination rights set forth
therein, it being understood that any such succession by the Trustee or its
designee shall not be automatic but shall be in the discretion of the
Trustee or such designee.
In addition, each Sub-Servicing Agreement entered into by the Servicer
may provide that the obligations of the Sub-Servicer thereunder shall
terminate with respect to any Loan serviced thereunder at the time such Loan
becomes a Specially Serviced Loan. The Servicer shall deliver to the Trustee
copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. For purposes of this Agreement, the Servicer
shall be deemed to have received any payment when a Sub-Servicer retained by
it receives such payment. The Servicer shall notify the Special Servicer,
the Trustee and the Depositor in writing promptly of the appointment by it of
any Sub-Servicer. The Special Servicer shall notify the Servicer, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Servicer or the
Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Servicer
would require were it the owner of the Loans. The Servicer or the Special
Servicer, as applicable, shall have the right to remove a Sub-Servicer
retained by it in accordance with the terms of the related Sub-Servicing
Agreement upon the Events of Defaults and other termination events specified
in the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor Servicer
and elects to assume the rights and obligations of the Servicer or the
Special Servicer, as applicable, under any Sub-Servicing Agreement, the
Servicer or the Special Servicer, as applicable, at its expense, shall
deliver to the assuming party all documents and records relating to such Sub-
Servicing Agreement and the Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement, each
of the Servicer and the Special Servicer represents and warrants that it
shall remain obligated and liable to the Trustee and the Certificateholders
for the performance of its obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if it alone were servicing and administering the
Loans for which it is responsible, and the Servicer, or the Special Servicer,
as applicable, shall pay the fees of any Sub-Servicer thereunder from its own
funds or, with respect to the
Seller-Servicers shall permit each to retain its fees from amounts collected
by such Seller-Servicer. In no event shall the Trust Fund bear any
termination fee required to be paid to any Sub-Servicer as a result of such
Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any limited powers of
attorney and other documents necessary or appropriate to enable such Sub-
Servicer to carry out its servicing and administrative duties under any Sub-
Servicing Agreement; provided, however, that the Trustee shall not
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be held liable for any negligence or misuse of, any such power of attorney by
a Sub-Servicer, and shall be indemnified by the Sub-Servicer, with respect
thereto.
(g) Except with respect to the Seller-Servicing Agreement, each Sub-
Servicing Agreement shall provide that, in the event the Trustee or any other
Person becomes a successor Servicer or the Special Servicer, as applicable,
the Trustee or such successor Servicer or the Special Servicer, as
applicable, shall have the right to terminate such Sub-Servicing Agreement
without a fee.
(h) Promptly (but in no event later than five (5) Business Days) after
the execution of any Sub-Servicing Agreement, the Servicer shall forward a
copy of such Sub-Servicing Agreement to the Special Servicer, and the Special
Servicer shall forward a copy of such Sub-Servicing Agreement to the Trustee.
The Special Servicer shall comply with the terms of each such Sub-Servicing
Agreement to the extent the terms thereof are not inconsistent with the terms
of this Agreement and the Special Servicer's obligations hereunder.
SECTION 3.23. Representations and Warranties of the Servicer.
----------------------------------------------
(a) The Servicer hereby represents and warrants to the Trustee, for its
own benefit and the benefit of the Certificateholders, and to the Depositor
and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America, and the Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Servicer, and the performance and compliance with the terms of this
Agreement by the Servicer, will not violate the Servicer's articles of
association and by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Servicer or its
property is subject;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Servicer, enforceable against the Servicer
in accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Servicer is not in violation with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which violations
are likely to have consequences that would materially and adversely
affect the condition (financial or other) or operations of the Servicer
or its properties or are likely to have consequences that would
materially and adversely affect its ability to perform its duties and
obligations hereunder;
(v) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations
under this Agreement or the financial condition of the Servicer;
(vi) The Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. Any Sub-Servicing Agreements
will comply with the provisions of Section 3.22;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Servicer of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Servicer to perform its obligations hereunder; and
(viii) The Servicer has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(ix) The Servicing Fee represents reasonable servicing
compensation, and the Servicing Fee will be treated for tax and
accounting purposes as compensation for
servicing the Loans.
(x) The Servicer has examined each Sub-Servicing Agreement to
which it is a party, and shall examine each Sub-Servicing Agreement to
which it intends to become a party, and in each such case, the terms of
such Sub-Servicing Agreements are not, or, in the case of any Sub-
Servicing Agreement to be entered into by the Servicer at a future date,
will not be, materially inconsistent with the terms of this Agreement.
(xi) Each officer, director, employee, consultant or advisor of
the Servicer that has responsibilities concerning the servicing and
administration of Loans is covered by errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(c). Neither
the Servicer nor any officer, director, employee, consultant or advisor
of the Servicer that is involved in the servicing or administration of
Loans has been refused such coverage or insurance.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement. The Servicer
shall indemnify the Trustee and the Trust Fund and hold each of them harmless
against any losses, damages, penalties, fines, forfeitures, and reasonable
legal fees and related costs, judgments, and other out-of-pocket costs and
expenses resulting from any claim, demand, defense or assertion arising from,
or resulting from a material breach of the Servicer's representations and
warranties contained in paragraph (a) above, which breach has a material
adverse effect on the ability of the Servicer to perform its obligations
hereunder. Such indemnification shall survive any termination or resignation
of the Servicer, and any termination of the Agreement.
SECTION 3.24. Representations and Warranties of the Special
---------------------------------------------
Servicer.
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(a) The Special Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the
Depositor and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida, 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 perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special
Servicer's charter and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, or result in the
violation of any law, rule, regulation, order, judgment or decree to
which the Special Servicer or its property is subject;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and
(B) general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer;
(vii) Each officer, director or employee of the Special Servicer
that has or, following the occurrence of a Servicing Transfer Event,
would have responsibilities concerning the servicing and administration
of Loans is covered by errors and omissions insurance in the amounts and
with the coverage required by Section 3.07(c). Neither the Special
Servicer nor any of its officers, directors or employees that is or,
following the occurrence of a Servicing Transfer Event, would be
involved in the servicing or administration of Loans has been refused
such coverage or insurance; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special
Servicer with, this Agreement
or the consummation of the transactions contemplated by this Agreement,
except for any consent, approval, authorization or order which has not
been obtained or cannot be obtained prior to the actual performance by
the Special Servicer of its obligations under this Agreement, and which,
if not obtained would not have a materially adverse effect on the
ability of the Special Servicer to perform its obligations hereunder.
(ix) The Special Servicing Fee represents reasonable servicing
compensation, and the Special Servicing Fee will be treated for tax and
accounting purposes as compensation for servicing the Specially Serviced
Loans.
(x) The Special Servicer has examined each Sub-Servicing Agreement
to which it is a party, and shall examine each Sub-Servicing Agreement
to which it intends to become a party, and in each such case, the terms
of such Sub-Servicing Agreements are not, or, in the case of any Sub-
Servicing Agreement to be entered into by the Special Servicer at a
future date, will not, be materially inconsistent with the terms of this
Agreement.
(xi) Each officer, director, employee, consultant or advisor of
the Special Servicer that has or, following the occurrence of a
Servicing Transfer Event, would have responsibilities concerning the
servicing and administration of Specially Serviced Loans is covered by
errors and omissions insurance in the amounts and with the coverage
required by Section 3.07(c). Neither the Special Servicer nor any
officer, director, employee, consultant or advisor of the Special
Servicer that is or, following the occurrence of a Servicing Transfer
Event, would be involved in the servicing or administration of Specially
Serviced Loans has been refused such coverage or insurance.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement. The Special
Servicer shall indemnify the Trustee and the Trust Fund and hold each of them
harmless against any losses, damages, penalties, fines, forfeitures, legal
fees and related costs, judgments and other costs and expenses resulting from
any claim, demand, defense or assertion based on or grounded upon, or
resulting from a material breach of the Special Servicer's representations
and warranties contained in paragraph (a) above. Such indemnification shall
survive any termination or resignation of the Special Servicer, and any
termination of the Agreement.
SECTION 3.25. Duties of the Extension Advisor.
-------------------------------
(a) The Special Servicer may not extend the maturity of any Specially
Serviced Loan beyond the third anniversary of such Loan's original maturity
date, unless the Extension Advisor elected pursuant to Section 3.26 shall
have approved such extension in writing within 10 days after receiving from
the Special Servicer the information, analysis and certification required by
Section 3.25(b). If a written objection to such extension from the Extension
Advisor has not been received by the Special Servicer within said 10-day
period,
then the Extension Advisor's approval shall be deemed to have been given.
(b) The Special Servicer shall, with respect to any proposed extension
of a Specially Serviced Loan beyond the third anniversary of such Loan's
original maturity date, prepare and deliver to the Extension Advisor, a
summary of such proposed extension and an analysis summarizing the basis of
its conclusion that such extension is reasonably likely to produce a greater
recovery on a present value basis (the relevant discounting to be performed
at the related Net Mortgage Rate) than liquidation of such Loan. Such
analysis shall specify the basis on which the Special Servicer has made such
determination, including the status of any existing material default or the
grounds for concluding that a payment default is imminent.
The Special Servicer shall promptly provide the Extension Advisor with
such information as is reasonably requested by the Extension Advisor
(including, without limitation, operating statements, rents rolls,
appraisals, environmental reports, inspection reports and financial
statements of the applicable Mortgagor) in connection with any proposed
extension that is in the Special Servicer's possession or is reasonably
obtainable by the Special Servicer. The Extension Advisor shall be entitled
to conclusively rely on the information provided by the Special Servicer
without any independent investigation or verification on the part of the
Extension Advisor. In addition, the Special Servicer, in connection with
each request for extension, shall provide to the Extension Advisor an
Officer's Certificate, upon which it may conclusively rely, confirming that
all conditions precedent to the granting of any such extension set forth in
this Agreement (other than the approval of the Extension Advisor) have been
satisfied.
(c) No direction of the Extension Advisor shall (i) require or cause
the Special Servicer to violate the terms of a Specially Serviced Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and
to maintain the REMIC status of the Lower-Tier REMIC and the Upper-Tier
REMIC, or (ii) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (iii) expose the
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Seller, the
Trust Fund, the Trustee or their respective Affiliates, officers, directors,
employees or agents to any claim, suit or liability or (iv) materially expand
the scope of the Special Servicer's or the Servicer's responsibilities under
this Agreement.
SECTION 3.26. Extension Advisor; Elections.
----------------------------
(a) The Class A, Class B, Class C, Class D and Class E
Certificateholders will be entitled to elect, and shall be deemed to have
elected, the Trustee or a designee of the Trustee as their representative
(the "Extension Advisor") as provided in this Section 3.26. The Trustee
-----------------
(or any other Person duly elected as Extension Advisor) may resign as
Extension Advisor at any time for any reason or no reason upon not less than
five Business Days' written notice to the Depositor, the Trustee, the Special
Servicer, the Servicer and each
Class A, Class B, Class C, Class D and Class E Certificateholder. Upon
(i) the receipt by the Trustee of written requests for an election of an
Extension Advisor from such Certificateholders representing more than 50% of
the Voting Rights of all the Class A, Class B, Class C, Class D and Class E
Certificates or (ii) the resignation or removal of the Person acting as
Extension Advisor, an election of a successor Extension Advisor shall be held
commencing as soon as practicable thereafter. The Extension Advisor shall be
elected for the purpose of approving certain actions of the Special Servicer
specified herein in respect of extending the maturity of any Specially
Serviced Loan beyond the third anniversary of its original maturity date.
(b) Promptly after any such receipt, resignation, removal or
determination contemplated by Section 3.26(a), the Trustee shall call a
meeting of the Holders of the Class A, Class B, Class C, Class D and Class E
Certificates, if any, for the purpose of electing an Extension Advisor.
Notice of any such meeting of such Holders shall be mailed or delivered to
each Holder not less than 10 days nor more than 60 days prior to the meeting;
provided, however, that notice of the initial election
- -------- -------
shall be mailed or delivered no later than 3 days after the Closing Date.
The notice shall state the place and the time of the meeting, which may be
held by telephone. Certificateholders representing a majority of the Percentage
Interest of the applicable Class, present in person, by telephone or represented
by proxy, shall constitute a quorum for such Class for the nomination of an
Extension Advisor. At the meeting, each such Holder shall be entitled to
nominate one Person to act as Extension Advisor. The Trustee shall cause the
election of the Extension Advisor to be held as soon thereafter as
convenient.
(c) Each Holder of a Class A, Class B, Class C, Class D and Class E
Certificate shall be entitled to vote in each election of the Extension
Advisor. The voting in each election of the Extension Advisor shall be in
writing mailed, delivered or sent by courier and actually received by the
Trustee on or prior to the date of such election. Immediately upon receipt
by the Trustee of votes (which have not been rescinded) from the Holders of
such Certificates representing more than 50% of the Voting Rights of all the
Class A, Class B, Class C, Class D and Class E Certificates, which votes are
cast for a single Person, such Person shall be, upon such Person's
acceptance, the Extension Advisor. In the event that after the Closing Date
an Extension Advisor shall have resigned or been removed and a successor
Extension Advisor shall not have been elected, there shall be no Extension
Advisor. Notwithstanding anything to the contrary contained herein, the
Special Servicer shall not have any right or obligation to consult with or to
seek and/or obtain approval or direction from an Extension Advisor, and
provisions of this Agreement relating thereto shall be of no effect, in any
event during any such period that there is no Extension Advisor.
(d) The Extension Advisor may be removed at any time by the written
vote, copies of which must be delivered to the Trustee, of Holders of such
Certificates representing more than 50% of the Voting Rights of all the
Class A, Class B, Class C, Class D and Class E Certificates.
(e) The Trustee shall act as judge of each election of an Extension
Advisor, and, absent manifest error, the determination of the results of any
such election by the Trustee shall be conclusive. Notwithstanding any other
provisions of this Section 3.26, the Trustee may make such reasonable
regulations as it may deem advisable for any such election. Upon election of
a successor Extension Advisor, the Trustee shall promptly mail notice thereof
by first class mail to the Depositor, the Servicer, the Special Servicer, the
Mortgage Loan Seller, the Directing Certificateholder, the Underwriter, the
Initial Purchaser, the Holders of the Subordinate Certificates and each of
the Rating Agencies.
(f) As compensation for performing its duties hereunder, the Extension
Advisor shall be entitled to reimbursement of its reasonable out-of-pocket
expenses and payment of $3,000 per extension, which amounts shall be paid pro
rata by the Classes entitled to elect the Extension Advisor out of monies
otherwise distributable to such Classes.
SECTION 3.27. Limitation on Liability of Extension Advisor and
------------------------------------------------
Directing Certificateholder.
- ---------------------------
The Extension Advisor will be acting solely as a representative of the
interests of the Class A, Class B, Class C, Class D and Class E
Certificateholders, and shall not have any responsibility or liability to the
Trust Fund or any other Class or Classes of Certificateholders for any action
taken, or for refraining from the taking of any action, in good faith
pursuant to this Agreement, or for errors in judgment; provided,
--------
however, that this provision shall not protect the Extension Advisor
- -------
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations or duties hereunder. By its
acceptance of a Certificate, each Certificateholder confirms its
understanding that the Extension Advisor may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of
the Certificates and that the Extension Advisor may have special
relationships and interests that conflict with those of Holders of some
Classes of the Certificates and, absent willful misfeasance, bad faith,
negligence or negligent disregard of obligations or duties on the part of the
Extension Advisor, agrees to take no action against the Extension Advisor or
any of its officers, directors, employees, principals or agents as a result
of such a special relationship or conflict.
The Directing Certificateholder shall not have any responsibility or
liability to the Trust Fund or any other Class or Classes of
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
-------- -------
Directing Certificateholder against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of grossly negligent disregard of
obligations or duties hereunder. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that
the Directing Certificateholder may have special
relationships and interests that conflict with those of Holders of some
Classes of the Certificates and, absent willful misfeasance, bad faith,
negligence or negligent disregard of obligations or duties on the part of the
Directing Certificateholder, agrees to take no action against the Directing
Certificateholder as a result of such a special relationship or conflict.
SECTION 3.28. Reports to the Securities and Exchange Commission;
--------------------------------------------------
Available Information.
- ---------------------
(a) The Servicer shall prepare and sign, on behalf of the Depositor,
any and all Exchange Act Reports; provided, however, that (i) the Depositor
shall prepare, sign and file with the Commission the initial Form 8-K
relating to the Trust Fund and (ii) the Special Servicer shall prepare and
sign on behalf of the Depositor any Exchange Act Report which includes an
Annual Compliance Report relating to the Special Servicer. Each Exchange Act
Report shall be prepared as an exhibit or exhibits to a Form 8-K. Each
Exchange Act Report consisting of an Annual Compliance Report shall be
prepared as an exhibit to an Annual Report on Form 10-K and shall identify
the aggregate number of Holders of Public Certificates and Depository
Participants holding positions in Public Certificates as of December 31 (or
the nearest Business Day if such date is not a Business Day) of the related
year based on information provided by the Trustee.
The Trustee shall provide the Servicer and the Special Servicer with a
list of Certificateholders and Depository Participants holding Public
Certificates as of December 31 of the related year no later than two Business
Days prior to the date on which the Servicer or Special Servicer, as
applicable, is required to deliver the related Exchange Act Report to the
Trustee. For each Exchange Act Report, the Servicer or the Special Servicer,
as applicable, shall prepare (i) a manually-signed paper version of such
report and (ii) an electronic version of such report, which version shall be
prepared as a Microsoft Word for Windows file (or in such other format as the
Trustee and the Servicer or the Special Servicer may agree), provided, that,
with respect to the electronic version of each Exchange Act Report consisting
of a monthly Distribution Date Statement, the Servicer need only deliver an
electronic version of the related Form 8-K and the Trustee shall attach an
electronic version of the related monthly Distribution Date Statement thereto
as an exhibit.
Exchange Act Reports consisting of (i) a monthly Distribution Date
Statement shall be filed within ten days after the related Distribution Date;
(ii) a Comparative Financial Status Report, Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report, REO
Status Report, Operating Statement Analysis, NOI Adjustment Worksheet, Watch
List, or report pursuant to Section 4.02(b) shall be filed within ten days
after each Distribution Date; and (iii) an Annual Compliance Report shall be
filed on or prior to March 15 of each calendar year. The Servicer (or the
Special Servicer, as provided above) shall deliver electronic versions of
each Exchange Act Report to the Trustee on a computer diskette or by means of
electronic data transfer system mutually agreed upon by the Trustee and the
Servicer or Special Servicer. The Trustee shall file each Exchange Act
Report with the Commission by means of the "EDGAR" system in a manner and in
a format required by Regulation S-T. Manually-signed copies of each
Exchange Act Report shall be delivered by Trustee to the Depositor,
Attention: Legal/Compliance/Colleen Graham.
If any Exchange Act Report is incomplete by the date on which such
report is required to be filed under the Exchange Act, the Servicer or, with
respect to any Annual Compliance Report relating to the Special Servicer, the
Special Servicer, shall prepare and execute a Form 12b-25 under the Exchange
Act and shall deliver an electronic version of such form to the Trustee for
filing with the Commission. The Servicer or the Special Servicer, as
applicable, shall deliver the related report in electronic form to the
Trustee when such information is available and such completed report shall be
forwarded electronically by the Trustee to the Depositor. The Servicer shall
be deemed not to be in default of Section 3.14 if it fails to deliver a USAP
report at the required time provided that it complies with this paragraph.
None of the Servicer, the Special Servicer and the Trustee shall (i)
file a Form ID with respect to the Depositor or (ii) cause the Trust Fund to
stop filing reports, statements and information with the Commission pursuant
to this Section unless directed to do so by the Depositor or the continued
reporting is prohibited under the Exchange Act or any regulations thereunder.
Unless the Trustee receives written instructions from the Depositor to the
contrary, upon receipt of information from the Trustee indicating that there
are fewer than 300 Certificateholders and/or Depository Participants, in the
aggregate, the Servicer shall prepare and the Trustee shall file a Form 15
relating to the Trust Fund with the Commission and send a copy thereof to the
Depositor, Attention: Legal/Compliance/Colleen Graham.
The Trustee shall solicit any and all proxies of the Certificateholders
whenever such proxies are required to be solicited pursuant to the Exchange
Act.
(b) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt, also make available any additional information
relating to the Loans, the Mortgaged Properties or the Borrowers, for review
by the Depositor, the Rating Agencies and any other Persons to whom the
Servicer believes such disclosure is appropriate, in each case except to the
extent doing so is prohibited by applicable law or by the related Loan.
(c) The Servicer and the Special Servicer shall make available at its
offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies and the
Depositor) for review by the Depositor, the Trustee, the Rating Agencies, any
Certificateholder, any Person identified to the Servicer or the Special
Servicer, as applicable, by a Certificateholder as a prospective transferee
of a Certificate and any other Persons to whom the Servicer or the Special
Servicer, as applicable, believes such disclosure to be appropriate the
following items: (i) all financial statements, occupancy information, rent
rolls, retail sales information, average daily room rates and similar
information received by the Servicer or the Special Servicer, as applicable,
from each Borrower, (ii) the inspection reports prepared by or on behalf of
the Servicer or the Special Servicer, as applicable, in connection with the
property inspections pursuant to
Section 3.19, (iii) any and all modifications, waivers and amendments of the
terms of a Loan entered into by the Servicer or the Special Servicer, as
applicable and (iv) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available from
the Servicer or the Special Servicer, as applicable, or the Trustee, upon
request. Copies of all such information shall be delivered by the Servicer
or the Special Servicer, as applicable, semi-annually to the Certificate
Owners of the Class I, Class J and Class K Certificates (as identified by the
related Depository Participant and for so long as such Classes remain
outstanding) at the address specified by such Certificate Owners; provided,
however, that if beneficial ownership of the Class I, Class J and Class K
Certificates resides in more than one Certificate Owner, the Servicer or the
Special Servicer, as applicable, shall be responsible only for the expense of
providing the first such copy of such information and shall be entitled to
reimbursement from the Trust Fund for the expense of any additional copies so
provided.
(d) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.28, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the contrary,
the Trustee shall not be required to review the content of any Exchange Act
Report for compliance with applicable securities laws or regulations,
completeness, accuracy or otherwise, and the Trustee shall have no liability
with respect to any Exchange Act Report filed with the Commission or
delivered to Certificateholders. None of the Servicer, the Special Servicer
and the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee and their
respective Affiliates, agents, directors, officers and employees shall be
indemnified and held harmless by the Trust Fund against any loss, liability
or expense incurred in connection with any legal action relating to any
statement or omission or alleged statement or omission therein. None of the
Trustee, the Special Servicer and the Servicer shall have any responsibility
or liability with respect to any Exchange Act Report filed by the Depositor,
and each of the Servicer, the Special Servicer and the Trustee and their
respective Affiliates, agents, directors, officers and employees shall be
indemnified and held harmless by the Trust Fund against any loss, liability
or expense incurred in connection with any legal action relating to any
statement or omission or alleged statement or omission therein.
SECTION 3.29. Lock-Box Accounts and Servicing Accounts.
----------------------------------------
(a) The Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
(b) For any Loan that provides that a Lock-Box Account will be
established upon the occurrence of certain events specified in the related
Loan Documents, the Servicer (or, with respect to any Specially Serviced
Loan, the Special Servicer) shall establish such Lock-Box Account upon the
occurrence of such events unless the Servicer (or the Special Servicer, as
applicable) determines, in accordance with the Servicing Standards, that such
Lock-Box Account should not be established. Notwithstanding the foregoing,
the Servicer (or the Special Servicer, as applicable) shall establish a Lock-
Box Account for each ARD Loan no later than its Anticipated Repayment Date.
SECTION 3.30. Interest Reserve Account.
------------------------
(a) The Servicer shall establish, on or before the Closing Date, and
maintain the Interest Reserve Account on behalf of the Lower-Tier REMIC. As
of the Closing Date, the Interest Reserve Account shall be located at the
offices of the Servicer. The Servicer shall give notice to the Trustee, the
Special Servicer and the Depositor of the location of the Interest Reserve
Account and, prior to any change thereof, any new location of the Interest
Reserve Account. On each Servicer Remittance Date ending in any February and
on any Servicer Remittance Date ending in any January which occurs in a year
which is not a leap year, the Servicer shall deposit, in respect of each
Actual/360 Loan, into the Interest Reserve Account, an amount withheld from
the related Monthly Payment or Advance equal to one day's interest on the
Stated Principal Balance of such Actual/360 Loan as of the Due Date occurring
in the month preceding the month in which such Servicer Remittance Date
occurs at the related Mortgage Rate, to the extent a full Monthly Payment or
P&I Advance is made in respect thereof (all amounts so deposited in any
consecutive January and February (or, in the case of a leap year, in any
February), "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer
shall withdraw from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding December and January Interest Accrual
Periods, if any, and deposit such amount (excluding any net investment income
thereon) into the Lower-Tier Distribution Account.
SECTION 3.31. Limitations on and Authorizations of the Servicer and
-----------------------------------------------------
Special Servicer with Respect to Certain Loans.
- ----------------------------------------------
(a) Prior to taking any action with respect to a Loan secured by any
Mortgaged Properties located in a "one-action" state or Aruba, the Special
Servicer shall consult with legal counsel, the fees and expenses of which
shall be an expense of the Trust Fund.
(b) With respect to any Loan which permits the related Borrower, with
the consent or grant of a waiver by the mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, the Special Servicer may consent to either such action, or grant a
waiver with respect thereto, only if the Special Servicer determines that
such consent or grant of waiver is likely to result in a greater recovery on
a
present value basis (discounted at the related Mortgage Rate) than the
withholding of such consent or grant of waiver, and the Special Servicer
first obtains written confirmation from each Rating Agency that such consent
or grant of waiver would not, in and of itself, result in a downgrade,
qualification or withdrawal of any of the then current ratings assigned to
the Certificates. The Servicer shall not be entitled or required to consent
to, or grant a waiver with respect to, either action. With respect to all
ARD Loans, the Servicer shall apply (x) all Monthly Payments to interest
(other than Excess Interest or Default Interest) under the related Loan prior
to application to principal and (y) any other sums due, to principal or
Excess Interest or Default Interest.
(c) With respect to all ARD Loans, the Servicer and the Special
Servicer shall not take any enforcement action with respect to the payment of
Excess Interest or principal in excess of the principal component of the
constant Monthly Payment, other than requests for collection, until the
maturity date of the related Loan. The foregoing shall not limit the
Servicer and Special Servicer's obligation to establish a Lock-Box Account
pursuant to Section 3.29.
(d) With respect to the Loans that (i) require earthquake insurance, or
(ii) (A) at the date of origination were secured by Mortgaged Properties on
which the related Borrower maintained earthquake insurance and (B) have
provisions which enable the Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of
clause (i), required by the Loan and in the amount, in the case of this
clause (ii), maintained at origination, in each case, to the extent such
amounts are available at commercially reasonable rates. Any determination by
the Servicer that such insurance is not available at commercially reasonable
rates with respect to a Loan for which any related Mortgaged Property has a
"Probable Maximum Loss", bounded on the basis of 50 years, in excess of 20
shall be subject to confirmation by Fitch that such determination not to
purchase such insurance will not result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates rated by
Fitch.
(e) (i) Within 10 days after the Closing Date, the Special Servicer
shall notify Chubb Custom Insurance Company (together with any assignee,
successor or subsequent insurer, the "Credit Lease Enhancement Policy
Issuer") that both the Servicer and the Special Servicer shall be sent
notices under each "Credit Lease Enhancement Policy". In the event that the
Servicer has actual knowledge of any event (an "Insured Event") giving rise
to a claim under any Credit Lease Enhancement Policy, the Servicer shall
notify the Special Servicer thereof within three Business Days after learning
of such event. The Special Servicer shall prepare and file a "proof of loss"
form with the Credit Lease Enhancement Policy Issuer within five Business
Days after receiving notice of any Insured Event under the related policy and
shall diligently process any claims under such policy in accordance with the
Servicing Standards. The Special Servicer shall give notice to the Servicer
of any claim made under any Credit Lease Enhancement Policy and of any Credit
Lease Enhancement Policy Termination Event of which the Servicer does not
already have notice.
(ii) In the event that the Servicer receives notice of any abatement,
rescission, cancellation, termination, contest, legal process, arbitration or
disavowal of liability with respect to any Credit Lease Enhancement Policy
(each, a "Credit Lease Enhancement Policy Termination Event"), the Servicer
shall, within three Business Days after receipt of such notice, notify the
Special Servicer of such Credit Lease Enhancement Policy Termination Event in
writing. Upon receipt of such notice, the Special Servicer shall,
notwithstanding that the servicing of the related Loan may not have been
transferred to the Special Servicer in accordance with Section 3.21 hereof,
address such Credit Lease Enhancement Policy Termination Event in accordance
with the Servicing Standards. Any legal fees incurred in connection with a
resolution of a Credit Lease Enhancement Policy Termination Event shall be
paid by the Servicer and shall be reimbursable to it as a Trust Fund expense.
(f) The Servicer shall not consent to a change of franchise affiliation
with respect to the Hyatt Aruba Mortgage Loan unless it obtains written
confirmation from the Rating Agencies that such change of franchise
affiliation would not, in and of itself, result in a downgrade, qualification
or withdrawal of the then current ratings assigned to the Certificates.
(g) None of the Servicer, the Special Servicer or the Trustee shall
consent to any bankruptcy filing with respect to Beachfront Funding B.V.
(h) The Trustee agrees that, in connection with the Hyatt Aruba
Mortgage Loan, it shall (i) serve as or appoint one of the board members
of the Stichting Administratiekantoor Beachfront Funding B. V., a Netherlands
foundation (the "Foundation"), that will serve as the sole shareholder of
Beachfront Funding B.V., the borrower under the Hyatt Aruba Mortgage Loan,
(ii) take all actions necessary for the administration of the Foundation in
accordance with the organizational documents thereof and (iii) abstain from
voting on any matter other than a matter that by the terms of the Articles of
Incorporation of the Foundation or the Administration Conditions thereof
requires the unanimous consent of the members of the board of the Foundation.
The Trustee shall vote in favor of any transfer of depositary receipts issued
by the Foundation for shares in the share capital of Beachfront Funding B.V.
so long as such transfer is to an affiliate of the Depositor, and
the Trustee shall vote against any other transfer of such depositary
receipts. The Trustee shall give its written consent without a meeting
to such resolutions as shall reasonably be requested in writing by the other
board members, acting unanimously, for the purpose of taking ministerial
actions to administer the Foundation, including without limitation the hiring
of an agent in The Netherlands to maintain a registered office for the
Foundation in The Netherlands and take other ministerial actions on behalf of
the Foundation.
Upon the resignation or replacement of the Trustee and the appointment
of a successor Trustee, the Trustee that is resigning or being replaced shall
also resign, and shall cause any board member appointed by it to resign, as a
board member of the Foundation, effective upon the appointment of its
replacement. Any successor Trustee shall upon its succession replace or
appoint a replacement for the resigning or replaced Trustee or its appointee
as a board member of the Foundation, and each of the resigning or replaced
Trustee and successor Trustee shall take all actions reasonably necessary to
effectuate the foregoing.
(i) The Servicer shall not consent to, (w) the amendment or
modification of any Loan, (x) the incurrence by any Borrower of any debt,
(y) the amendment by any Borrower of such Borrower's organizational documents
or (z) any action on the part of a Borrower that would activate, with respect
to the Loan, any due-on-sale clause pursuant to Section 3.08(a) or any
due-on encumberance clause pursuant to Section 3.08(b). The Servicer
shall promplty forward to the Special Servicer any request by the Servicer
from a Borrower for any such consent.
SECTION 3.32. REMIC Administration.
--------------------
(a) The Trustee shall make an election to treat each of the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the Code and if necessary,
under State Tax Laws. Each such election will be made on Form 1066 or other
appropriate federal tax or information return (including Form 8811) or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. To the extent the
affairs of the Trust Fund are within their control, the Servicer and the
Trustee shall not permit the creation of any "interests" (within the meaning
of Section 860G of the Code) in either of the Lower-Tier REMIC or the Upper-
Tier REMIC other than the Uncertificated Lower-Tier Interests (excluding the
Class LR Certificates) and the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of the
REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class LR Certificate is hereby designated, and by
the acceptance of the Class LR Certificate agrees to act, as Tax Matters
Person for the Lower-Tier REMIC. Any Holder of the Class LR Certificate must
at all times hold a 100% Percentage Interest therein. The Holder of the
Class R Certificate is hereby designated, and by the acceptance of the Class
R Certificate agrees to act, as Tax Matters Person for the Upper-Tier REMIC.
(d) The Tax Matters Person hereby irrevocably authorizes the Trustee to
be its attorney-in-fact for purposes of signing all Tax Returns.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to either
REMICs created hereunder and shall sign and file such Tax Returns in a timely
manner. The expenses of preparing such returns shall be borne by the Trustee
without any right of reimbursement therefor.
(f) The Trustee shall provide (i) upon request by any Transferor of a
Class LR or Class R Certificate such information to such Transferor and the
IRS as is (x) reasonably necessary for the application of any tax relating to
the transfer of a Class LR or Class R Certificate to any Person who is not a
Permitted Transferee or (y) otherwise required to be provided by Treasury
Regulation Section 1.860E-2 (and in the time and manner required to be
provided to such person under such Regulation), (ii) to the
Certificateholders such information or reports as are required by the Code,
the REMIC Provisions or State Tax Laws including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each of the REMICs.
(g) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as
shall be necessary to maintain the status thereof as REMICs under the REMIC
Provisions (and the Servicer shall assist the Trustee, to the extent
reasonably requested by the Trustee to do so). None of the Servicer, the
Special Servicer or the Trustee shall knowingly or intentionally take any
action, cause either of the Lower- Tier REMIC or the Upper-Tier REMIC to
take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a
tax under the REMIC Provisions upon either the Lower-Tier REMIC or the
Upper-Tier REMIC (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event") unless such party receives an Opinion
of Counsel (at the expense of the party seeking to take such action or, if
such party fails to pay such expense, and such party determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of such party) to the effect that the contemplated action will not,
with respect to any of the REMICs created hereunder, cause either REMIC to
fail to qualify as a REMIC or, unless such party determines in its sole
discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax.
(h) In the event that any tax is imposed on "prohibited transactions"
of any REMIC created hereunder as defined in Section 860F(a)(2) of the Code,
on "net income from foreclosure property" of any REMIC as defined in Section
860G(c) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged
(i) to a Servicer, if such tax arises out of or results from a breach by such
Servicer of any of its obligations under this Agreement and such breach is
not caused by the breach of another party, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement and such breach is not caused by the breach
of another party and (iii) otherwise, against amounts on deposit in the
Certificate Account, and on the Distribution Date(s) following such
reimbursement the aggregate of such taxes shall be allocated in reduction of
the Optimal Interest Distribution Amount on each Class entitled thereto in
the same manner as if such taxes constituted an Uncovered Prepayment Interest
Shortfall.
(i) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(j) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to either REMIC unless the Servicer
and the Trustee shall have received an Opinion of Counsel (at the expense of
the party seeking to make such contribution) to the effect that the inclusion
of such assets in either REMIC will not cause either REMIC to fail to qualify
as REMICs at any time that any Certificates are outstanding
or subject either REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) Neither the Servicer, the Special Servicer nor the Trustee shall
enter into any arrangement by which either REMIC will receive a fee or other
compensation for services nor, to the extent reasonably within their control,
permit either such REMIC to receive an income from assets other than
"qualified mortgages" as defined in Section 8650G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(l) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the "latest possible maturity date" by which the Class Balance
of each Class of Certificates representing a regular interest in the Upper-
Tier REMIC would be reduced to zero is the Rated Final Distribution Date.
(m) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" (or applicable successor form) for both the
Lower-Tier REMIC and the Upper-Tier REMIC.
(n) None of the Trustee, the Servicer or the Special Servicer shall
sell or dispose of any of the Loans (except in connection with (i) the
default, imminent default or foreclosure of a Loan, including but not limited
to, the acquisition or sale of a Mortgaged Property acquired by deed in lieu
of foreclosure, (ii) the bankruptcy of either REMIC, (iii) the termination of
either REMIC pursuant to Article X of this Agreement or (iv) a purchase of
Loans pursuant to Article II of this Agreement) nor acquire any assets for
either REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to either REMIC after the
Closing Date, unless it has received an Opinion of Counsel that such sale or
disposition will not affect adversely the status of either REMIC as a REMIC.
(o) The Depositor shall provide or cause to be provided to the Trustee,
within ten (10) days after the Closing Date, and thereafter on an ongoing
basis, all information or data requested by the Trustee that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations
and issue prices of the Certificates, including without limitation, the
price, yield, original issue discount, market discount or premium and
projected cash flow of the Certificates. In addition, the Servicer, the
Special Servicer and the Depositor shall provide on a timely basis to the
Trustee or its designee such information with respect to the Trust Fund as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Article. The Trustee shall be entitled to
rely conclusively upon all such information so provided to it without
recalculation or other investigation.
(p) The Trustee shall be entitled to reasonable compensation and to the
reimbursement of its reasonable expenses incurred in the performance of its
duties under this Section 3.32 as may be agreed upon by the Trustee and the
Depositor, provided that the Trustee shall pay out of its own funds, without
any right of reimbursement, any and all ordinary expenses of the Trust Fund
incurred in the performance of its duties under this Article but shall be
reimbursed, except as otherwise expressly provided for herein by the Trust
Fund for any of its extraordinary expenses, including any taxes or
tax-related payments, any expenses involved in any tax examination, audit or
proceeding, and the expense of any tax- related Opinion of Counsel or other
professional advice requested by the Trustee for the benefit or protection
of the Certificateholders.
(End of Article III)
ARTICLE IV
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PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
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(a) On each Distribution Date, to the extent of the General Available
Distribution Amount and the Private Loan Available Distribution Amount for
such Distribution Date, the Trustee shall transfer such amounts from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account in the
amounts and priorities set forth in Section 4.01(b) with respect to each
class of Uncertificated Lower-Tier Interests, and immediately thereafter,
shall make distributions thereof from the Upper-Tier Distribution Account in
the following order of priority, satisfying in full, to the extent required
and possible, each priority before making any distribution with respect to
any succeeding priority:
(I) from the General Available Distribution Amount:
(A) in respect of interest, concurrently, (i) to the Class A-1A,
Class A-1B and Class A-1C Certificates, such Classes' respective Optimal
Interest Distribution Amounts for such Distribution Date and (ii) to the
Class A-X Certificates, the Class A-X Group 1 Interest Distributable
Amount for such Distribution Date, any insufficiency therein being
allocated among such Classes in proportion to such Optimal Interest
Distribution Amounts and such Class A-X Group 1 Interest Distributable
Amount;
(B) to the Class A-1 Certificates, in reduction of the Certificate
Balances thereof, an amount up to the General Principal Distribution
Amount for such Distribution Date, in the following order of priority:
first, to the Class A-1A Certificates, until the Certificate
Balance thereof is reduced to zero;
second, to the Class A-1B Certificates, until the Certificate
Balance thereof is reduced to zero; and
third, to the Class A-1C Certificates, until the Certificate
Balance thereof is reduced to zero;
(C) to the Class A-1A, Class A-1B and Class A-1C Certificates, pro
rata (based upon the aggregate unreimbursed Collateral Support Deficit
previously allocated to each such Class), until all amounts of such
Collateral Support Deficit previously allocated to such Classes, but not
previously reimbursed, have been reimbursed in full; and
(II) from the sum of (x) the General Available Distribution Amount
remaining after giving effect to the distributions made on such Distribution
Date pursuant to clause (I) above and (y) the Private Loan Available
Distribution Amount for such Distribution Date:
(A) in respect of interest, concurrently, (i) to the Class A-2
Certificates, the Optimal Interest Distribution Amount for such Class
for such Distribution Date and (ii) to the Class A-X Certificates, (x)
on or before the Class A-1 Payoff Date, the sum of (1) the Class A-X
Group 2 Interest Distributable Amount for such Distribution Date and (2)
the Class A-X Group 2 Unpaid Interest Carryforward Amount for such
Distribution Date and (y) after the Class A-1 Payoff Date, the Optimal
Interest Distribution Amount for the Class A-X Certificates for such
Distribution Date, any insufficiency therein being allocated between
such Classes in proportion to their respective interest entitlements for
such Distribution Date, as described in this clause (A);
(B) to the Class A-2 Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date, until such Certificate Balance has
been reduced to zero; and
(C) to the Class A-2 Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class A-2 Certificates, but
not previously reimbursed, have been reimbursed in full;
(D) to the Class B Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(E) to the Class B Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(F) to the Class B Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class B Certificates, but
not previously reimbursed, have been reimbursed in full;
(G) to the Class C Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(H) to the Class C Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(I) to the Class C Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class C Certificates, but
not previously reimbursed, have been reimbursed in full:
(J) to the Class D Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(K) to the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(L) to the Class D Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class D Certificates, but
not previously reimbursed, have been reimbursed in full;
(M) the Class E Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(N) to the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(O) to the Class E Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class E Certificates, but
not previously reimbursed, have been reimbursed in full;
(P) to the Class F Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(Q) to the Class F Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(R) to the Class F Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class F Certificates, but
not previously reimbursed, have been reimbursed in full;
(S) to the Class G Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(T) to the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(U) to the Class G Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class G Certificates, but
not previously reimbursed, have been reimbursed in full;
(V) to the Class H Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(W) to the Class H Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(X) to the Class H Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class H Certificates, but
not previously reimbursed, have been reimbursed in full;
(Y) to the Class I Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(Z) to the Class I Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(AA) the Class I Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class I Certificates, but
not previously reimbursed, have been reimbursed in full;
(AB) to the Class J Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(AC) to the Class J Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(AD) to the Class J Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class J Certificates, but
not previously reimbursed, have been reimbursed in full;
(AE) to the Class K Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(AF) to the Class K Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(AG) to the Class K Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class K Certificates, but
not previously reimbursed, have been reimbursed in full; and
(AH) to the Class R Certificates, the amount, if any, of the
General Available Distribution Amount and Private Loan Available
Distribution Amount remaining in the Upper-Tier Distribution Account
with respect to such Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions from the Lower-Tier Distribution Account in
respect of principal or reimbursement of Collateral Support Deficit in an
amount equal to the amount of principal or reimbursement of Collateral
Support Deficit distributable to such Uncertificated Lower-Tier Interest's
respective Class of Related Certificates as provided in Sections 4.01(a) and
(c). Between each Distribution Date, each Uncertificated Lower-Tier Interest
shall accrue interest in an amount equal to the principal balance of each
such Uncertificated Lower-Tier Interest multiplied by the Combined Weighted
Average Net Mortgage Rate. On each Distribution Date, each Uncertificated
Lower-Tier Interest shall receive distributions in respect of interest in an
amount equal to the amount of interest that will actually be distributed in
respect of such Uncertificated Lower-Tier Interest's Related Certificate and
such Uncertificated Lower-Tier Interest's corresponding Class A-X Component.
In all events, the amount accrued in respect of each Uncertificated Lower-
Tier Interest less the amount actually distributed in respect of such
Uncertificated Lower-Tier Interest should equal the sum of (i) the Interest
Shortfall Amount allocated to such Uncertificated Lower-Tier Interest's
Related Certificates, (ii) the Interest Shortfall Amount allocated to the
Class A-X Certificates and attributable to such Uncertificated Lower-Tier
Interest and (iii) any Certificate Deferred Interest allocated to such
Uncertificated Lower-Tier Interest. Such amounts distributed to the
Uncertificated Lower-Tier Interests in respect of principal, interest and
reduction of Collateral Support Deficit with respect to any Distribution Date
are referred to herein collectively as the "Lower-Tier Distribution Amount"
and shall be made by the Trustee by ------------------------------
depositing such Lower-Tier Distribution Amount in the Upper-Tier Distribution
Account.
As of any date, payments of principal in respect of the Loans and the
Collateral Support Deficit will be allocated to the Uncertificated Lower-Tier
Interests such that the sum of the principal balance of each Uncertificated
Lower-Tier Interest and the amount of Collateral Support Deficit allocated to
such Class of Uncertificated Lower-Tier Interests equals the Certificate
Balance of the Related Certificates with respect thereto and the amount of
Collateral Support Deficit allocated to such Class of Related Certificates.
The initial principal balance of each Uncertificated Lower-Tier Interest
equals the respective Original Lower-Tier Principal Amount. The pass-through
rate with respect to each Uncertificated Lower-Tier Interest will be the rate
per annum set forth in the Preliminary Statement hereto.
Interest Shortfall Amounts allocated to the Class A-X Certificates shall
be attributed first to the most senior Uncertificated Lower-Tier Interest
outstanding to the extent of its Class A-X Component and then to the next
most senior Uncertificated Lower-Tier Interest to the extent of its Class A-X
Component until all such amounts are allocated. Any amounts so allocated
shall have the same seniority as payments due the Class A-X Certificates.
Interest shall be treated as accrued rather than paid on an Uncertificated
Lower-Tier Interest to the extent that its Related Class of Certificates is
treated as earning Certificate Deferred Interest, and any such interest
shall be added to the principal balance of such Uncertificated Lower-Tier
Interest so as to cause its principal balance to conform to the principal
balance of its Related Class of Certificates. Any amount that remains in
the Lower-Tier Distribution Account on each Distribution Date after
distribution of the Lower-Tier Distribution Amount shall be distributed to
the Holders of the Class LR Certificates (but only to the extent of the
General Available Distribution Amount and the Private Loan Available
Distribution Amount for such Distribution Date remaining in the Lower-Tier
Distribution Account, if any). Prepayment Interest Shortfalls shall be
allocated to each class of Uncertificated Lower-Tier Interests on the basis
of their respective interest entitlements.
(c) Notwithstanding the foregoing, on each Distribution Date occurring
on or after the Credit Support Crossover Date, the General Principal
Distribution Amount will be distributed, pro rata, to the Class A-1A, Class
A-1B and Class A-1C Certificates in proportion to such Classes' respective
Certificate Balances, in reduction thereof, until the Certificate Balance of
each such Class has been reduced to zero and, thereafter, to the Class A-2
Certificates until the Certificate Balance of such Class has been reduced to
zero.
(d) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Prepayment
Premiums and Yield Maintenance Charges actually collected on the Loans or any
REO Loans during the related Due Period and shall distribute such amount to
all Uncertificated Lower-Tier Interests pro rata in proportion to their
outstanding principal balances.
(e) On each Distribution Date, the Servicer will deposit all Prepayment
Premiums in the Lower-Tier Distribution Account for payment to the
Uncertificated Lower-Tier Interests pro rata in proportion to their
respective principal balances. On each Distribution Date, until the
Certificate Balances of the Class A, Class B, Class C, Class D and Class E
Certificates have each been reduced to zero, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent
Prepayment Premiums actually collected on Loans or REO Loans during the
related Due Period and remitted in respect of the Uncertificated Lower-Tier
Interests pursuant to Section 4.01(d), and shall distribute to each Class of
Class A-1A, Class A-1B, Class A-1C, Class A-2, Class B, Class C, Class D and
Class E Certificates then outstanding an amount equal to the product of (a) a
fraction whose numerator is the amount distributed as principal to such Class
from the General Available Distribution Amount pursuant to Section 4.01(a) on
such Distribution Date and whose denominator is the total amount of principal
distributed to all Classes of Certificates from the General Available
Distribution Amount pursuant to Section 4.01(a) on such Distribution Date,
(b) 25% and (c) the total amount of such Prepayment Premiums collected during
the related Due Period. Any Prepayment Premiums received during the related
Due Period with respect to the Loans or REO Loans remitted in respect of
Uncertificated Lower-Tier Interests pursuant to Section 4.01(d) and remaining
after such distributions shall be distributed on the Class A-X Certificates.
On each Distribution Date, the Servicer will deposit all Yield
Maintenance Charges in the Lower-Tier Distribution Account for payment to the
Uncertificated Lower-Tier Interests pro rata in proportion to their
respective principal balances. On each Distribution Date, until the
Certificate Balances of the Class A, Class B, Class C, Class D and Class E
Certificates have each been reduced to zero, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent
Yield Maintenance Charges actually collected on Loans or REO Loans (in each
case, other than the Private Loan) during the related Due Period and remitted
in respect of Uncertificated Lower-Tier Interests pursuant to Section
4.01(d), and shall distribute to each Class of Class A-1A, Class A-1B, Class
A-1C, Class A-2, Class B, Class C, Class D and Class E Certificates an amount
equal to the product of (a) a fraction whose numerator is the amount
distributed as principal to such Class from the General Available
Distribution Amount pursuant to Section 4.01(a) on such Distribution Date and
whose denominator is the total amount of principal distributed to all Classes
of Certificates from the General Available Distribution Amount pursuant to
Section 4.01(a) on such Distribution Date, (b) the Base Interest Fraction for
the related principal prepayment and such Class of Certificates and (c) the
aggregate amount of such Yield Maintenance Charges collected on such
principal prepayment during the related Due Period. Any Yield Maintenance
Charges received during the related Due Period with respect to the Loans or
REO Loans (in each case, other than the Private Loan), remitted in respect of
the Uncertificated Lower-Tier Interests pursuant to Section 4.01(d) and
remaining after such distributions shall be distributed on the Class A-X
Certificates.
On each Distribution Date, until the Certificate Balances of the
Class A-2 Certificates has been reduced to zero, the Trustee shall withdraw
any amounts on deposit in the Upper-Tier Distribution Account that represent
Yield Maintenance Charges actually collected on the Private Loan or related
REO Loan during the related Due Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(d), and shall
distribute to the Class A-2 Certificates an amount equal to the product of
(a) a fraction whose numerator is the amount distributed as principal to such
Class from the Private Loan Available Distribution Amount pursuant to Section
4.01(a) on such Distribution Date and whose denominator is the total amount
of principal distributed to all Classes of Certificates from the Private Loan
Available Distribution Amount pursuant to Section 4.01(a) on such
Distribution Date, (b) the Base Interest Fraction for the related principal
prepayment and the Class A-2 Certificates and (c) the aggregate amount of
such Yield Maintenance Charges collected on such principal prepayment during
the related Due Period. Any Yield Maintenance Charges received during the
related Due Period with respect to the Private Loan or related REO Loan,
remitted in respect of the Uncertificated Lower-Tier Interests pursuant to
Section 4.01(d) and remaining after such distribution shall be distributed on
the Class A-X Certificates.
Following the reduction of the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates to zero, the Trustee shall
distribute 100% of any Yield Maintenance Charges and Prepayment Premiums
actually received during the related Due
Period with respect to the Loans and remitted in respect of Uncertificated
Lower-Tier Interests pursuant to Section 4.01(d), to the Class A-X
Certificates.
(f) On any applicable Distribution Date, Excess Interest for such
Distribution Date shall be distributed to the Class V-1 Certificates.
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
--- ----
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise specifically provided in Sections 4.01(h), 4.01(i) and
9.01, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of
record at the close of business on the related Record Date and shall be made
by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates) and is the
registered owner of Certificates with an aggregate initial Certificate
Balance (or in the case of the Class A-X Certificates, a Notional Balance) of
at least $5,000,000, or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to
such Certificate) 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.
Each distribution with respect to a Book-Entry Certificate shall be paid
to the Depository, as Holder thereof, and the Depository shall be responsible
for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible
for disbursing funds to the Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor, the Servicer, the
Special Servicer, the Underwriter or the Initial Purchaser shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any amount
of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall,
no later than two Business Days following the related P&I Advance
Determination Date, mail to each Holder on such date of such Class of
Certificates a notice to the effect that no interest shall accrue on such
Certificates from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of 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
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 4.01(h) shall not have been
surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining non-
tendering 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 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
Certificateholder on any amount held in trust hereunder by the Trustee as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with this Section 4.01(h).
(i) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective
Class otherwise entitled to distributions of interest and principal on such
Class on the relevant Distribution Date; provided, that
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all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each
such prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 10.05
at such last address. The amount of the distribution to each such prior
Holder shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior
Holder is returned uncashed, then the amount thereof shall be set aside and
held uninvested in trust for the benefit of such prior Holder, and the
Trustee shall attempt to contact such prior Holder in the manner contemplated
by Section 4.01(h) as if such Holder had failed to surrender its
Certificates.
(j) Shortfalls in the General Available Distribution Amount or the
Private Loan Available Distribution Amount resulting from Prepayment Interest
Shortfalls not covered by compensation to the Servicer pursuant to the last
paragraph of Section 3.11(a) shall be allocated to each Class of Regular
Certificates, pro rata, based on the Accrued Certificate Interest Amount
distributable to each such Class. The amount by which the servicing
compensation is to be reduced in connection with Prepayment Interest
Shortfalls pursuant to the last paragraph of Section 3.11(a) shall be
deposited by the Servicer into the Certificate Account on or prior to the
Servicer Remittance Date.
Shortfalls in the General Available Distribution Amount or the Private
Loan Available Distribution Amount resulting from unanticipated Trust Fund
indemnification expenses incurred pursuant to Section 6.03 and Section 8.05
shall be allocated to each Class of Regular Certificates, pro rata, based on
the Accrued Certificate Interest Amount distributable to each such Class.
Unanticipated indemnification expenses which are applied to each Class of
Certificates shall be allocated to the Uncertificated Lower-Tier Interests
corresponding to such Classes.
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
-----------------------------------------------------
Other Information Available to the Holders and Others.
- -----------------------------------------------------
(a) On each Distribution Date, based solely upon the information
regarding the Loans set forth in the Servicer Remittance Report prepared by
the Servicer and the other reports prepared by the Servicer and Special
Servicer relating to such Distribution Date, and only to the extent such
information is provided to the Trustee by the Servicer or Special Servicer,
the Trustee shall prepare and forward, by first class mail to each Holder of
a Certificate, with copies to the Depositor, the Servicer, the Special
Servicer, the Underwriter and each Rating Agency a written report (a
"Distribution Date Statement") setting forth the following information with:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates applied to
reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable to
(A) such Class's Optimal Interest Distribution Amount and, separately stated,
the portion thereof representing the Unpaid Interest Shortfall Amount for
such Class, (B) Prepayment Premiums and (C) Yield Maintenance Charges;
(iii) separately stated, the aggregate amounts of Uncovered Prepayment
Interest Shortfalls, Certificate Deferred Interest, Extension Advisor fees
and indemnification expenses of the Trust Fund allocable to the Holders of
each Class of Certificates on such Distribution Date;
(iv) the aggregate Certificate Balance or aggregate Notional Balance,
as the case may be, of each Class of Regular Certificates, before and after
giving effect to the distributions made on such Distribution Date, separately
identifying any reduction in the aggregate Certificate Balance (or, in the
case of the Class A-X Certificates, the aggregate Notional Balance) of each
such Class due to any Collateral Support Deficit;
(v) the Pass-Through Rate for each Class of Certificates applicable
to such Distribution Date;
(vi) the number of outstanding Loans and the aggregate unpaid
principal balance of the Loans at the close of business on the related
Distribution Date;
(vii) the number and aggregate unpaid principal balance of Loans (A)
delinquent one Due Period, (B) delinquent two Due Periods, (C) delinquent
three or more Due Periods, (D) that are Specially Serviced Loan that are not
delinquent, or (E) as to which foreclosure proceedings have been commenced;
(viii) with respect to any REO Loan as to which the related Mortgaged
Property became an REO Property during the preceding calendar month, the
city, state, property type, latest Debt Service Coverage Ratio, Stated
Principal Balance and the unpaid principal balance of such Loan as of the
date it became an REO Loan;
(ix) as to any Loan repurchased by the Mortgage Loan Seller or
otherwise liquidated or disposed of during the related Due Period, (A) the
Loan Number of the related Loan and (B) the amount of proceeds of any
repurchase of a Loan, Liquidation Proceeds and/or other amounts, if any,
received thereon during the related Due Period and the portion thereof
included in the related General Available Distribution Amount for such
Distribution Date;
(x) with respect to any REO Property included in the Trust Fund at
the close of business on the related Due Date (A) the Loan Number of the
related Loan, (B) the value of such REO Property based on the most recent
appraisal or valuation, and (C) the aggregate amount of income and other
revenues collected by the Special Servicer with respect to such REO Property
during the related Due Period and the portion thereof included in the related
General Available Distribution Amount for such Distribution Date;
(xi) with respect to any REO Property sold or otherwise disposed of
during the related Due Period and for which a Final Recovery Determination
has been made, (A) the Loan Number of the related Loan, (B) the amount of
sale proceeds and other amounts, if any, received in respect of such REO
Property during the related Due Period and the portion thereof included in
the related General Available Distribution Amount for such Distribution Date
and (C) the date of the Final Recovery Determination;
(xii) the aggregate amount of Principal Prepayments (other than
Liquidation Proceeds and Insurance and Condemnation Proceeds) made during the
related Due Period;
(xiii) the amount of Servicing Advances and P&I Advances outstanding
(net of reimbursed Advances) which have been made by the Servicer, the
Special Servicer or the Trustee in the aggregate and by Mortgaged Property or
Loan, as the case may be;
(xiv) the aggregate amount of Servicing Fees, Special Servicing Fees
and other servicing compensation retained by or paid to the Servicer and the
Special Servicer during the related Due Period;
(xv) the amount of any Appraisal Reduction Amounts allocated during
the related Due Period on a loan-by-loan basis; the total Appraisal Reduction
Amounts allocated during the related Due Period; and the total Appraisal
Reduction Amounts as of such Distribution Date on a loan-by-loan basis; and
(xvi) the Collateral Support Deficit, if any for such Distribution
Date.
In the case of information furnished pursuant to subclauses (i), (ii)
and (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth
the amounts, if any, actually distributed with respect to the Class R or
Class LR Certificates on such Distribution Date. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that it provided
substantially comparable information pursuant to any requirements of the Code
as from time to time in force.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual
basis (if appropriate) the items provided to Certificateholders pursuant to
Section 4.02(a)(ii) above and such other information as may be required to
enable such Certificateholders to prepare their federal income tax returns.
Such information shall include the amount of original issue discount accrued
on each Class of Certificates held by Persons other than Holders exempted
from the reporting requirements and information regarding the expenses of the
Trust. Such requirement shall be deemed to be satisfied to the extent such
information is provided pursuant to applicable requirements of the Code from
time to time in force.
(b) On each Distribution Date, the Trustee shall deliver or cause to be
delivered by first class mail to each Certificateholder, each prospective
investor in a Certificate (upon written request and certification by a
Certificate Owner), the Depositor, the Servicer, the Special Servicer, the
Underwriter, and each Rating Agency a report containing information regarding
the Loans as of the end of the related Due Period (after giving effect to
Principal Prepayments and other collections of principal required to be
distributed on such Distribution Date), which report shall contain
substantially the categories of information regarding the Loans set forth in
the Prospectus Supplement under the caption "Description of the
Loans--Certain Terms and Conditions of the Mortgage Loans" (reported, where
applicable, solely on the basis of the most recent relevant information
provided by the Borrowers to the Servicer or the Special Servicer, as the
case may be, and by the Servicer or the Special Servicer, as the case may
be, to the Trustee), which shall also include a loan-by-loan listing (in
descending balance order) showing loan name, property type, location, unpaid
principal balance, Mortgage Rate, paid through date, maturity date, net
interest portion of the Monthly Payment, principal portion of the Monthly
Payment and any Prepayment Premium. Such report shall be made available
electronically in accordance with the provisions of Section 4.02(d);
provided, however, that the Trustee will provide Certificate Owners with a
written copy of such report upon written request.
(c) On each Distribution Date, the Trustee shall deliver or shall cause
to be delivered by first class mail to each Certificateholder, each
prospective investor in a Certificate (upon written request and certification
by a Certificate Owner), the Depositor, the Underwriter and each Rating
Agency a copy of the Comparative Financial Status Report, the Delinquent Loan
Status Report, the Historical Loss Estimate Report, the Historical Loan
Modification Report, the REO Status Report and a Watch List provided by the
Servicer to the Trustee pursuant to Section 3.12 on the Servicer Remittance
Date. The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer at least two Business Days
prior to the related Servicer Remittance Date. Absent manifest error, (i)
none of the Servicer, the Special Servicer or the Trustee shall be
responsible for the accuracy or completeness of any information supplied to
it by a Borrower or third party that is included in any reports, statements,
materials or information prepared or provided by the Servicer, the Special
Servicer or the Trustee, as applicable, (ii) the Trustee shall not be
responsible for the accuracy or completeness of any information supplied to
it by the Servicer or Special Servicer that is included in any reports,
statements, materials or information prepared or provided by the Servicer or
Special Servicer, as applicable, and (iii) the Trustee shall be entitled to
conclusively rely upon the Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or re-evaluate
any of the amounts or other information stated therein.
The Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Servicer and
Special Servicer to the Depositor, the Underwriter and each Rating Agency
promptly after its receipt thereof. Upon written request therefor, the
Trustee shall make such reports available to the Certificateholders and the
Special Servicer. Upon written request therefor, the Trustee shall also make
available any NOI Adjustment Worksheet for a Mortgaged Property or REO
Property in the possession of the Trustee to any potential investor in the
Certificates.
(d) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Days' prior written notice,
for review by any Certificateholder, any prospective investor in a
Certificate, the Depositor, the Servicer, the Special Servicer, any Rating
Agency, and any other Person to whom the Depositor believes such disclosure
is appropriate, originals or copies of documents relating to the Loans and
any related REO Properties to the extent in its possession, including,
without limitation, the following items (except to the extent prohibited by
applicable law or by the terms of any of the Mortgage Documents): (i) this
Agreement and any amendments thereto; (ii) all Distribution Date Statements
delivered to the Certificateholders since the Closing Date; (iii) all annual
Officers' Certificates and all accountants' reports delivered by the
Servicer or Special Servicer to the Trustee since the Closing Date regarding
compliance with the relevant agreements; (iv) the most recent property
inspection report prepared by or on behalf of the Servicer or the Special
Servicer in respect of each Mortgaged Property; (v) the most recent annual
(or more frequent, if available) operating statements, rent rolls (to the
extent such rent rolls have been made available by the related Borrower)
and/or lease summaries and retail sales information, if any, collected by or
on behalf of the Servicer or the Special Servicer in respect to each
Mortgaged Property; (vi) any and all modifications, waivers and amendments
of the terms of a Loan entered into by the Servicer and/or the Special
Servicer; (vii) any and all Officers' Certificates and other evidence
delivered to or by the Trustee to support the Servicer's or the Trustee's,
as the case may be, determination that any Advance, if made, would be a
Nonrecoverable Advance; and (viii) any other materials not otherwise
required to be provided hereunder provided to a requesting Certificateholder
as provided in this Agreement in situations where such requesting
Certificateholder declined to enter into a confidentiality agreement with
the Servicer. Copies of any and all of the foregoing items will be available
from the Trustee upon written request therefor. The Trustee will be
permitted to require payment by the requesting party (other than a Rating
Agency) of a sum sufficient to cover the reasonable costs and expenses of
making such information available and providing any copies thereof. The
Trustee's obligation under this Section 4.02(d) to make available any
document is subject to the Trustee's receipt of such document.
The Trustee will make available each month, to any interested party, the
Distribution Date Statement and any other reports referred to in Section
4.02(c) hereof via the Trustee's unrestricted electronic bulletin board. In
addition, the Trustee will also make Loan information as presented in the
CSSA100 format available each month, to any Certificateholder, Certificate
Owner, the Rating Agencies, the parties hereto or any interested party who
has obtained approval from the Depositor, which approval has been furnished
to the Trustee, such Loan information provided to Trustee in suitable format
via the Trustee's restricted electronic bulletin board. The Servicer may,
but is not required to, make available the Distribution Date Statements via
the Internet.
The Trustee shall be obligated to deliver the statements, reports and
information contemplated by Section 4.02 only to the extent it receives the
necessary underlying information from the Servicer or the Special Servicer
and shall not be liable for any failure to deliver any thereof on the
prescribed due dates, to the extent caused by failure to receive timely such
underlying information. Nothing herein shall obligate the Trustee, the
Servicer or the Special Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Borrower and the failure of the
Trustee, the Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
SECTION 4.03. P&I Advances.
------------
(a) On or before 1:00 p.m., New York City time, on each P&I Advance
Date, the Servicer shall (i) deposit into the Distribution Accounts from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to
be made in respect of the related Distribution Date, (ii) apply amounts held
in the Certificate Account that are not required to be part of either
Available Distribution Amounts for such Distribution Date or (iii) make P&I
Advances in the form of any combination of (i) and (ii) aggregating the total
amount of P&I Advances to be made. Any amounts held in the Certificate
Account not required to be a part of the General Available Distribution
Amount or the Private Loan Available Distribution Amount for such
Distribution Date and so used to make P&I Advances shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit
in the Certificate Account on or before the next succeeding P&I Advance
Determination Date (to the extent not previously replaced through the deposit
of Late Collections of the delinquent principal and/or interest in respect of
which such P&I Advances were made). The Servicer shall notify the Trustee by
a certificate of the Servicing Officer of (i) the aggregate amount of P&I
Advances for a Distribution Date and (ii) the amount of any Nonrecoverable
P&I Advances for such Distribution Date, on or before three (3) Business Days
prior to such Distribution Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount of
P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Seller-Servicer Fees and Servicing Fees), other than Balloon
Payments, that were due during any related Due Period and delinquent as of
the close of business on the Business Day preceding the related P&I Advance
Date (or not advanced by any Sub-Servicer on behalf of the Servicer) and
(ii) with respect to each Loan as to which the related Balloon Payment was
due during or prior to the related Due Period and was delinquent as of the
end of the related Due Period (including any REO Loan as to which the Balloon
Payment would have been past due), an amount equal to the Assumed Scheduled
Payment therefor. Subject to subsection (c) below, the obligation of the
Servicer to make such P&I Advances is mandatory and, with respect to any Loan
or REO Loan, shall continue until the Distribution Date on which the
proceeds, if any, received in connection with a Liquidation Event with
respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, 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. On the fourth Business Day before
each Distribution Date, the Special Servicer shall report to the Servicer the
Special Servicer's determination as to whether each P&I Advance made with
respect to any previous Distribution Date or required to be made with respect
to such Distribution Date with respect to any Specially Serviced Loan or REO
Loan is a Nonrecoverable P&I Advance. The Servicer shall be entitled to
conclusively rely on such determination.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Servicer shall be
entitled to pay itself or the Trustee, as the case may be, out of any
amounts then on deposit in the Certificate Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of
such P&I Advance from the date made to but not including the date of
reimbursement. The Servicer shall reimburse itself or the Trustee, as the
case may be, for any outstanding P&I Advance as soon as practicably possible
after funds available for such purpose are deposited in the Certificate
Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall be required or permitted to make an advance for Penalty
Charges, Prepayment Premiums, Yield Maintenance Charges, Balloon Payments or
Excess Interest, (ii) the amount required to be advanced in respect of
delinquent Monthly Payments and Assumed Scheduled Payments on any Loan that
has been subject to an Appraisal Reduction will equal, with respect to any
Distribution Date, the amount that would be required to be advanced by the
Servicer without giving effect to the Appraisal Reduction less the Appraisal
Reduction Amount for such Distribution Date, and (iii) if the monthly payment
on any Loan has been reduced in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20, or if the final maturity on any Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20, and the monthly payment due and owing
during the extension period is less than the related Assumed Scheduled
Payment, then the Servicer shall, as to such Loan only, advance only the
amount of the Monthly Payment due and owing after taking into account such
reduction (net of related Seller-Servicer Fees and Servicing Fees), in the
event of subsequent delinquencies thereon.
(f) Upon receipt of notice of a Credit Lease Enhancement Policy
Termination Event, the Servicer shall:
(i) Maintain a record of all payments by the related Credit Lease
Enhancement Policy Issuer (the aggregate amount already paid at such
time, together with all subsequent payments made from time to time
thereafter, under the Credit Lease Enhancement Policy, the "Credit Lease
Enhancement Policy Exposure");
(ii) Make no P&I Advance with respect to the related Loan to the
extent that such P&I Advance, taking into account any Credit Lease
Enhancement Policy Exposure, would constitute a Nonrecoverable P&I
Advance;
(iii) Upon determination that any P&I Advance (or portion
thereof) or payment by the Credit Lease Enhancement Policy Issuer (or
portion thereof), taking into account the Credit Lease Enhancement
Policy Exposure, with respect to such Loan would be a Nonrecoverable
Advance, deposit into an account (the "Enhancement Policy Escrow
Account") established and maintained by the Servicer as
an Eligible Account all payments made under the related Credit Lease
Enhancement Policy after the date of such determination until the date
on which ultimate responsibility (as between the Trust Fund and the
Credit Lease Enhancement Policy Issuer) for payments with respect to
such Credit Lease Enhancement Policy Termination Event is finally
resolved. Amounts deposited in the Enhancement Policy Escrow Account
shall be invested in Permitted Investments selected by the Servicer
pursuant to Section 3.06;
(iv) In the event any payment (or portion thereof) made by such
Credit Lease Enhancement Policy Issuer is subsequently determined, in
accordance with the dispute resolution procedures set forth in the
related Credit Lease Enhancement Policy or pursuant to any legal process
or settlement by the Special Servicer of any claim by such Credit Lease
Enhancement Policy Issuer, to be reimbursable to such issuer, (a) remit
to such issuer the amount on deposit in the Enhancement Policy Escrow
Account (up to the amount owed to the issuer), (b) make a P&I Advance of
any remaining amount owed to the issuer and (c) promptly pay the amount
of such P&I Advance to such issuer under the Credit Lease Enhancement
Policy with respect to such Credit Lease Enhancement Policy Termination
Event. If such P&I Advance is determined to be a Nonrecoverable P&I
Advance, the Servicer shall nevertheless make such P&I Advance to the
related Credit Lease Enhancement Policy Issuer to reimburse it for
amounts paid out under the Credit Lease Enhancement Policy as provided
above, but the Servicer shall be entitled to immediately reimburse
itself from general funds available in the Certificate Account for such
P&I Advance as a Trust Fund expense. If such P&I Advance is not
determined to be a Nonrecoverable P&I Advance, the Servicer shall be
repaid therefor out of the proceeds of the related Loan.
(v) In the event any payment (or portion thereof) made by such
Credit Lease Enhancement Policy Issuer and deposited into the
Enhancement Policy Escrow Account is subsequently determined to have
been properly payable to the Trust Fund, then the Servicer shall deposit
into the Certificate Account the amount on deposit in the Enhancement
Policy Escrow Account, (net of any interest and investment income realized
on funds on deposit therein that, pursuant to Section 3.06(a), is to be
applied to pay interest on Advances made with respect to, or other
expenses of the Trust Fund allocable to, the related Loan) together with
any payments in the nature of damages relating to non-payment under such
Credit Lease Enhancement Policy, as recoveries with respect to such Loan.
SECTION 4.04. Allocation of Collateral Support Deficit.
----------------------------------------
(a) On each Distribution Date, immediately following the distributions
to be made on such date pursuant to Section 4.01 and the allocation of
Certificate Deferred Interest pursuant to Section 4.06, the Trustee shall
calculate the amount, if any, by which (i) the aggregate Stated Principal
Balance of the Loans and any REO Loans expected to be outstanding immediately
following such Distribution Date is less than (ii) the then aggregate
Certificate Balance of the Regular Certificates after giving effect to
distributions of principal on such Distribution Date and the allocation of
Certificate Deferred Interest pursuant to Section 4.06 (any such deficit, the
"Collateral Support Deficit"). Any allocation of Collateral Support Deficit
--------------------------
to a Class of Regular Certificates shall be made by reducing the
Certificate Balance thereof by the amount so allocated. Any Collateral
Support Deficit allocated to a Class of Regular Certificates shall be
allocated among the respective Certificates of such Class in proportion to
the Percentage Interests evidenced thereby. The allocation of Collateral
Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously
allocated Collateral Support Deficit will not constitute distributions of
principal for any purpose and will not result in an additional reduction in
the Certificate Balance of the Class of Certificates in respect of which any
such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the Regular
Certificates will be reduced without distribution as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such
Certificates with respect to such Distribution Date. Any such write-off
shall be allocated among the respective Certificates as follows: first,
-----
to the Class K Certificates; second, to the Class J Certificates; third,
------ -----
to the Class I Certificates; fourth, to the Class H Certificates; fifth,
------ -----
to the Class G Certificates; sixth, to the Class F Certificates; seventh,
----- -------
to the Class E Certificates, eighth, to the Class D Certificates, ninth,
------ -----
to the Class C Certificates, tenth, to the Class B Certificates, in each
-----
case, until the remaining Certificate Balance of each such Class of
Certificates has been reduced to zero. Following the reduction of the
Certificate Balances of all such Classes to zero, any remaining portion of
such Collateral Support Deficit shall be allocated to the Class A-2
Certificates, in reduction of the Certificate Balance thereof, but only to
the extent that such Certificate Balance is not reduced to an amount that is
less than the outstanding principal balance of the Private Loan. Thereafter,
any remaining Collateral Support Deficit shall be allocated among the Class
A-1A, Class A-1B and Class A-1C Certificates, pro rata (based upon such
Classes' respective Certificate Balances), until the remaining Certificate
Balances of such Classes have been reduced to zero. Any Collateral Support
Deficit allocated to a Class of Certificates will be allocated among
respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal
Amounts of the Related Uncertificated Lower-Tier Interest with respect
thereto as a write-off.
SECTION 4.05. Appraisal Reductions.
--------------------
The aggregate Appraisal Reductions will be allocated by the Trustee on
each Distribution Date to the Certificate Balance of the Class K, Class J,
Class I, Class H, Class G, Class F, Class E, Class D, Class C and Class B
Certificates, in that order, up to the amount of their respective Certificate
Balances, for purposes of determining (x) the amount of P&I Advances with
respect to the related Loans, (y) Voting Rights and (z) the identity of the
Controlling Class. On any Distribution Date, an Appraisal Reduction that
otherwise would be allocated to a Class of Certificates will be allocated to
the next most subordinate Class to the extent that the Certificate Balance on
such Distribution Date for such
Class of Certificates (prior to taking the Appraisal Reduction into account)
is less than the Appraisal Reduction for such Distribution Date.
On the third Business Day by 4:00 p.m. New York City time immediately
preceding each Distribution Date with respect to which one or more Appraisal
Reductions exist, the Servicer shall notify the Trustee in writing of such
Appraisal Reductions and by the close of business of the second Business Day
immediately preceding each such Distribution Date, the Trustee shall identify
to the Servicer in writing each Class of Subordinate Certificates to which
one or more Appraisal Reductions will be allocated on such Distribution Date,
the applicable Pass-Through Rate of each such Class, and the amount of
Appraisal Reductions allocated to each such Class.
SECTION 4.06. Certificate Deferred Interest.
-----------------------------
(a) On each Distribution Date, the amount of interest distributable to
a Class of Certificates (other than the Class A-X Certificates) shall be
reduced by an amount equal to the amount of Mortgage Deferred Interest for
all Loans for the Due Dates occurring in the related Due Period allocated to
such Class of Certificates, such Mortgage Deferred Interest to be allocated
first to the Class K Certificates, second to the Class J Certificates, third
to the Class I Certificates, fourth to the Class H Certificates, fifth to the
Class G Certificates, sixth to the Class F Certificates, seventh to the
Class E Certificates, eighth to the Class D Certificates, ninth to the Class
C Certificates, tenth to the Class B Certificates, and eleventh, if the
Certificate Balance of each Class of Class A-1 Certificates is zero, to the
Class A-2 Certificates. If, however, the Certificate Balance of at least one
Class of Class A-1 Certificates is not zero, then any amounts representing
Certificate Deferred Interest after allocation thereof to the Subordinate
Certificates in accordance with the preceding sentence, if attributable to
the Private Loan, will be allocated to the Class A-2 Certificates and, if
attributable to the Loans other than the Private Loan, will be allocated to
the Class A-1 Certificates pro rata on the basis of the Class A-1
--- ----
Certificates' respective Accrued Certificate Interest Amounts for such
Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1A, Class A-1B, Class A-1C, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I, Class J and Class K Certificates shall be
increased (except for the purposes of determining Voting Rights or the
identity of the Controlling Class) by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates on such Distribution Date
pursuant to Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to
Section 4.06(a) to a Class of Certificates shall be allocated in reduction of
the amount of interest distributable to the Related Uncertificated Lower-Tier
Interest with respect thereto. On each Distribution Date, to the extent
provided in Section 4.06(b), Certificate Deferred Interest will be added to
the Lower-Tier Principal Amount of the Uncertificated Lower-Tier Interests in
the same manner as the interest thereon was reduced pursuant to the
preceding sentence.
SECTION 4.07. Grantor Trust Reporting.
-----------------------
The parties intend that the portions of the Trust Fund consisting of the
Excess Interest and the Excess Interest Distribution Account shall
constitute, and that the affairs of the Trust Fund (exclusive of the Upper
Tier REMIC and the Lower Tier REMIC) shall be conducted so as to qualify such
portion as a "grantor trust" under the Code, and the provisions hereof shall
be interpreted consistently with this intention. In furtherance of such
intention, the Trustee shall furnish or cause to be furnished to Class V-1
Certificateholders and shall file or cause to be filed with the Internal
Revenue Service together with Form 1041 or such other form as may be
applicable, income with respect to their applicable share of Excess Interest
in the case of the Class V-1 Certificates at the time or times and in the
manner required by the Code.
(End of Article IV)
ARTICLE V
THE CERTIFICATES
----------------
SECTION 5.01. The Certificates.
----------------
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-12. The Certificates
will be issuable in registered form only; provided, however,
-------- -------
that in accordance with Section 5.03 beneficial ownership interests in the
Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class R and Class LR
Certificates will each be issuable in one or more registered, definitive
physical certificates (each, a "Definitive Certificate") substantially in
----------------------
the form of Certificates of each Class and with such applicable legends as
are set forth in the Exhibits hereto corresponding to such Class. Each
Certificate will share ratably in all rights of the related Class.
The Class A-X Certificates will be issuable only in Denominations of
authorized initial Notional Balance of not less than $100,000 and integral
multiples of $10,000 in excess thereof. If the initial Notional Amount does
not equal an integral multiple of $10,000, then a single additional Class A-X
Certificate may be issued in a Denomination of not less than $100,000 that
includes the excess of (i) such initial Notional Amount over (ii) the largest
integral multiple of $10,000 that does not exceed such Certificate Balance.
The Regular Certificates (other than the Class A-X Certificates) will be
issuable only in Denominations of authorized initial Certificate Balance of
not less than $10,000, and integral multiples of $1,000 in excess thereof.
If the Certificate Balance of any Class of Regular Certificates (other than
the Class A-X Certificates) does not equal an integral multiple of $1,000,
then a single additional certificate of such Class may be issued in a
Denomination of not less than $10,000 that includes the excess of (i) such
initial Certificate Balance over (ii) the largest integral multiple of $1,000
that does not exceed such Certificate Balance. The Class V-1 and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 20%. The Class LR Certificates will be issuable only in one Definitive
Certificate in a denomination representing a Percentage Interest of 100%.
With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (a) set
------------
forth on the face thereof or, (b) set forth on a schedule attached thereto or
(c) in the case of any beneficial interest in a Book-Entry Certificate, the
interest of the related Certificate Owner in the applicable Class of
Certificates as reflected on the books and records of the Depository or
related Depository Participants, as applicable, (ii) expressed in terms of
initial Certificate Balance or initial Notional Balance, as applicable, and
(iii) be in an authorized denomination, as set forth above. The Book-Entry
Certificates will be issued as one or more certificates registered in the
name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof
will be entitled to receive a Definitive Certificate representing its
interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-
Entry Certificates, beneficial ownership interests in such Class of
Certificates will be maintained and transferred on the book-entry records of
the Depository and Depository Participants, and all references to actions by
Holders of such Class of Certificates will refer to action taken by the
Depository upon instructions received from the related registered Holders of
Certificates through the Depository Participants in accordance with the
Depository's procedures and, except as otherwise set forth herein, all
references herein to payments, notices, reports and statements to Holders of
such Class of Certificates will refer to payments, notices, reports and
statements to the Depository or its nominee as the registered Holder thereof,
for distribution to the related registered Holders of Certificates through
the Depository Participants in accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Certificate Registrar by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the authorized officers of the Certificate Registrar shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, however, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication. The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York 10001, is hereby initially appointed
Authenticating Agent with power to act on the Trustee's behalf in the
authentication and delivery of the Certificates in connection with transfers
and exchanges as herein provided. If the Authenticating Agent resigns or is
terminated, the Trustee shall appoint a successor Authenticating Agent which
may be the Trustee or an Affiliate thereof.
(c) Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or
with rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such
reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001, is hereby
initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
The Certificate Registrar may appoint, by a written instrument delivered to
the Depositor, the Trustee, the Special Servicer and the Servicer, any other
bank or trust company to act as Certificate Registrar under such conditions
as the predecessor Certificate Registrar may prescribe, provided that the
predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment.
If the Servicer resigns or is removed in accordance with the terms
hereof, and The Chase Manhattan Bank resigns as Certificate Registrar, the
Trustee shall immediately succeed to its predecessor's duties as Certificate
Registrar. The Depositor, the Trustee, the Servicer and the Special Servicer
shall have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate
of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall
-------- -------
the Certificate Registrar be required to maintain in the Certificate
Register the names of Certificate Owners.
The Person in whose name any Certificate is so registered shall be
deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Certificate Registrar, the Servicer, the Trustee, the
Special Servicer and any agent of any of them shall not be affected by any
notice or knowledge to the contrary. A Definitive Certificate is
transferable or exchangeable only upon the surrender of such Certificate to
the Certificate Registrar at its office maintained at 450 West 33rd Street,
New York, New York 10001, or at the Corporate Trust Office, if the Trustee is
the Certificate Registrar (the "Registrar Office") together with an
--------- ------
assignment and transfer (executed by the Holder or his duly authorized
attorney).
Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as
the Definitive Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e).
Each Certificate surrendered for registration of transfer shall be canceled,
and the Certificate Registrar shall hold such canceled Certificates in
accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under
the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than
one by the Depositor to an Affiliate thereof) is to be made in reliance upon
an exemption from the Securities Act, and under the applicable state
securities laws, then either: (i) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter"), which
--------------------------------
Investment Representation Letter shall certify, among other things, that the
transferee is a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act (a "Qualified Institutional Buyer"),
-----------------------------
substantially in the form of Exhibit C attached hereto, and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and
the Depositor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from registration
or qualification under the Securities Act, applicable state securities laws
and other relevant laws, which Opinion of Counsel shall not be an expense of
the Trust Fund, the Certificate Registrar, the Depositor or the Trustee and
(b) the Certificate Registrar shall require the transferor to execute a
certification in form and substance satisfactory to the Certificate Registrar
setting forth the facts surrounding such transfer; provided,
--------
however, that a transfer of a Non-Registered Certificate of any such
- -------
Class may be made to a trust if the transferor provides to the Certificate
Registrar and to the Trustee a certification that interests in such trust may
only be transferred subject to requirements substantially to the effect set
forth in this Section 5.02.
The Servicer will furnish, or cause to be furnished, upon the request of
any Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information as is specified in paragraph (d)(4) of Rule 144A with respect to
the Trust Fund, unless, at the time of such request, the entity with respect
to which such information is to be provided is subject to the reporting
requirements of Section 15(d) of the Exchange Act. None of the Depositor,
the Trustee, the Servicer or the Certificate Registrar is obligated to
register or qualify any Class of 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 without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and
does hereby agree to, indemnify the Depositor, the Trustee, the Servicer and
the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial
----------------
interest in a Book-Entry Certificate representing an interest in a
Non-Registered Certificate that is not rated in one of the top four
categories by a nationally recognized statistical rating organization to a
Qualified Institutional Buyer may be effectuated only by means of an
"SRO Rule 144A System" approved for such purpose by the Commission.
Unless the Non-Registered Certificates have been registered under the
Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES
NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE
EXCEPT IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS
AND (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE
OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH
CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER
AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM
OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER, AND MAY ALSO BE
REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the Subordinate Certificates, no sale, transfer,
pledge or other disposition by any Holder of any such Certificate shall be
made unless the Certificate Registrar shall have received either (i) a
representation letter from the proposed purchaser or transferee of such
Certificate substantially in the form of Exhibit G attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee
benefit plan subject to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, or a governmental plan (as defined in Section 3(32)
of ERISA) subject to any federal, state or local law ("Similar Law")
-----------
which is, to a material extent, similar to the foregoing provisions of ERISA
or the Code (each a "Plan") or (b) a person acting on behalf of or
----
using the assets of any such Plan (including an entity whose underlying
assets include Plan assets by reason of investment in the entity by such Plan
and the application of Department of Labor Regulation Section 2510.3-101),
other than an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be exempt from the prohibited transaction provisions
of ERISA and the Code under Prohibited Transaction Class Exemption 95-60 or
(ii) if such Certificate is presented for registration in the name of a
purchaser or transferee that is any of the foregoing, an Opinion of Counsel
in form and substance satisfactory to the Trustee, the Certificate Registrar
and the Depositor to the effect that the acquisition and holding of such
Certificate by such purchaser or transferee will not result in the assets of
the Trust Fund being deemed to be "plan assets" and subject to the fiduciary
responsibility provisions of ERISA, the prohibited transaction provisions of
the Code or the provisions of any Similar Law, will not constitute or result
in a "prohibited transaction" within the meaning of ERISA, Section 4975 of
the Code or any Similar Law, and will not subject the Trustee, the
Certificate Registrar, the Servicer, the Special Servicer, the Extension
Advisor, the Underwriter, the Initial Purchaser or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set
forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge
or other disposition of any such Certificate unless the Certificate Registrar
has received either the representation letter described in clause (i) above
or the Opinion of Counsel described in clause (ii) above. The costs of any
of the foregoing representation letters or Opinions of Counsel shall not be
borne by any of the Depositor, the Servicer, the Special Servicer, the
Trustee and the Trust Fund. Each Certificate Owner of a Subordinate
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a), or (b) above. Any transfer, sale, pledge or other disposition
of any such Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or
would otherwise violate the provisions of this Section 5.02(c) shall be
deemed absolutely null and void ab initio, to the
-- ------
extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Servicer will make available, or cause to be made available, upon written
request with sufficient notice during normal business hours, to any Holder
and any Person to whom any such Certificate of any such Class of Certificates
may be offered or sold, transferred, pledged or otherwise disposed of by such
Holder, information with respect to the Servicer, the Special Servicer or the
Loans reasonably necessary to the provision of an Opinion of Counsel
described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) No Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person)
(an "Agent"), a Plan or a Person acting on behalf of or
-----
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
----------------
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
- ------
Trustee and the Certificate Registrar of any change or impending change to
such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the
------------------
proposed Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the
proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership
Interest in such Residual Certificate and (2) not to transfer its
Ownership Interest in such Residual Certificate unless it provides
to the Certificate Registrar a letter substantially in the form
attached hereto as Exhibit D-2 (a "Transferor Letter")
-----------------
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization or Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
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 Residual Certificate. None of the Trustee, the
Servicer, the Authenticating Agent and the Certificate Registrar shall
be under any liability to any Person for any registration of Transfer of
a Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
(iii) The Servicer shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon
written request of the Trustee, all information in its possession and
necessary to compute any tax imposed as a result of the Transfer of an
Ownership Interest in a Residual Certificate to any Person who is a
Disqualified Organization or Agent thereof, including the information
described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-
2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate.
(e) Subject to the restrictions on transfer and exchange set forth in
this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized
attorney), in the case of transfer, and a written request for exchange in the
case of exchange.
Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five (5) Business Days of such request if made at
such Registrar Office, or within ten (10) Business Days if made at the office
of a transfer agent (other than the Certificate Registrar), execute and
deliver at such Registrar Office or at the office of such transfer agent, as
the case may be, to the transferee (in the case of transfer) or Holder (in
the case of exchange) or send by first class mail (at the risk of the
transferee in the case of transfer or Holder in the case of exchange) to such
address as the transferee or Holder, as applicable, may request in writing, a
Definitive Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The Certificate Registrar may decline to accept any request for
an exchange or registration of transfer of any Certificate during the period
of 15 days preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive
Certificate issued in exchange for a Certificate representing an interest in
the Class A-1A, Class A-1B or Class A-1C Certificates) or a beneficial
interest in a Book-Entry Certificate representing a Non-Registered
Certificate is being held by or for the benefit of a Person who is not an
Eligible Investor, or that such holding is unlawful under the laws of a
relevant jurisdiction, then the Certificate Registrar shall have the right,
but not the obligation, to void such transfer, if permitted under applicable
law, or to require the investor to sell such Definitive Certificate or
beneficial interest in such Book-Entry Certificate to an Eligible Investor
within 14 days after notice of such determination and each Certificateholder
by its acceptance of a Certificate authorizes the Certificate Registrar to
take such action.
(g) The Certificate Registrar shall provide notice to the Trustee, the
Servicer, the Special Servicer, and the Depositor of each transfer of a
Certificate and to provide each such Person with an updated copy of the
Certificate Register on or about January 1st and July 1st of each year,
commencing January 1, 1998.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold such canceled Certificates in accordance with its
standard procedures.
SECTION 5.03. Book-Entry Certificates.
-----------------------
(a) The Regular Certificates shall initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except
as provided in subsection (c) below, shall not be entitled to Definitive
Certificates in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by
the Depository Participant or brokerage firm representing such Certificate
Owner. Each
Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor and
the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements
between such Certificate Owners and the Depository Participants and brokerage
firms representing such Certificate Owners. Multiple requests and directions
from, and votes of, the Depository as Holder of the Book-Entry Certificates
with respect to any particular matter shall not be deemed inconsistent if
they are made with respect to different Certificate Owners. The Trustee may
establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (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 Depository with respect to some or all of the Classes, or
(iii) the Trustee determines that Definitive Certificates are required in
accordance with the provisions of Section 5.03(e), the Trustee shall notify
the affected Certificate Owners, through the Depository with respect to all
Classes, any Class or any portion of any Class of the Certificates, of the
occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within five (5) Business
Days of such request if made at the Registrar Office, or within ten (10)
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), the Definitive Certificates to the Certificate Owners
identified in such instructions. None of the Depositor, the Servicer, the
Trustee, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Class of Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders
hereunder and, accordingly, shall be entitled directly to receive payments
on, to exercise Voting Rights with respect to, and to transfer and exchange
such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and
(ii) shall bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR
---
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other Depository
as the Certificate Registrar may from time to time designate, and shall bear
such legend as may be appropriate.
(e) If the Trustee has instituted or has been directed to institute any
judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised
by counsel that in connection with such proceeding it is necessary or
appropriate for the Trustee to obtain possession of all or any portion of the
Certificates evidenced by Book-Entry Certificates, the Trustee may in its
sole discretion determine that such Certificates shall no longer be
represented by such Book-Entry Certificates. In such event, the Certificate
Registrar will execute, the Authenticating Agent will authenticate and the
Certificate Registrar will deliver, in exchange for such Book-Entry
Certificates, Definitive Certificates in a Denomination equal to the
aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Trustee shall
notify the affected Certificate Owners and make appropriate arrangements for
the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial interest
in a Book-Entry Certificate for a Definitive Certificate, as provided herein,
the Certificate Registrar shall endorse on a schedule affixed to the related
Book-Entry Certificate (or on a continuation of such schedule affixed to such
Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be
effected only in accordance with Depository Rules and this Section 5.03(g).
Upon receipt by the Certificate Registrar at the Registrar Office of (i) the
Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance
with Depository Rules directing the Certificate Registrar to credit or cause
to be credited to another account a beneficial interest in the related Book-
Entry Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance
with the Depository Rules containing information regarding the account to be
credited with such beneficial interest and (iv) if the affected Certificate
is a Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the
Holder or the Holder's transferee (as instructed by the Holder), and the
Certificate Registrar shall instruct the Depository or the custodian holding
such Book-Entry Certificate on behalf of the Depository to increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
corresponding Denomination of such Book-Entry Certificate.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and of like
Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trustee and the Certificate Registrar may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and the Certificate Registrar) connected therewith.
Any replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
---------------------
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, except as and to the
extent provided in the definition of "Certificateholder," and none of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate
Registrar and any agent of any of them shall be affected by notice to the
contrary except as provided in Section 5.02(d).
(End of Article V)
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
---------------------------------
SECTION 6.01. Liability of the Depositor, the Servicer and the
------------------------------------------------
Special Servicer.
- ----------------
The Depositor, the Servicer and the Special Servicer shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and
the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
-----------------------------------------------------
the Servicer or the Special Servicer.
- -------------------------------------
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Loans and to
perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, 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
Servicer or the Special Servicer shall be a party, or any Person succeeding
to the business of the Depositor, the Servicer or the Special Servicer, shall
be the successor of the Depositor, the Servicer and the Special Servicer, as
the case may be, hereunder, without the execution or filing of any paper
(other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that such
-------- -------
merger, consolidation or succession will not or has not resulted in a
withdrawal, downgrading or qualification of the then current ratings of the
Classes of Certificates that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
---------------------------------------------
Servicer, the Special Servicer and Others.
- ------------------------------------------
(a) Neither the Depositor, the Trustee (whether acting in such capacity
or as the Authenticating Agent or the Certificate Registrar), the Servicer,
the Special Servicer, the Extension Advisor nor any of the Affiliates,
directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust Fund or the Certificateholders for
any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided,
--------
however, that this provision shall not protect the Depositor, the Trustee,
- -------
the Servicer, the Special Servicer, the Extension Advisor or any such Person
against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of grossly
negligent disregard of obligations and duties hereunder. The Depositor, the
Servicer, the Special Servicer, the Trustee, the Extension Advisor and any
director, officer, employee or agent of the Depositor, the Servicer, the
Special Servicer or the Extension Advisor may rely in good faith on any
document of any kind which, prima facie, is ----- -----
properly executed and submitted by any Person respecting any matters arising
hereunder.
The Depositor, the Servicer, the Special Servicer, the Trustee (whether
acting in such capacity or as the Authenticating Agent, as the Certificate
Registrar or as a board member of the Foundation), the Extension Advisor, the
Directing Certificateholder and any Affiliate, director, officer, employee or
agent of any of the foregoing shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement, the Loans, the Stichting
Documents or the Certificates, other than any loss, liability or expense:
(i) specifically required to be borne thereby pursuant to the terms hereof;
(ii) incurred in connection with any breach of a representation, warranty or
covenant made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of grossly negligent disregard of such obligations or
duties or (iv) in the case of the Depositor and any of its directors,
officers, employees and agents, incurred in connection with any violation by
any of them of any state or federal securities law.
(b) None of the Depositor, the Trustee (whether acting in such capacity
or as the Authenticating Agent, as the Certificate Registrar or as a board
member of the Foundation), the Servicer, the Special Servicer, the
Extension Advisor or the Directing Certificateholder shall be under any
obligation to appear in, prosecute or defend any legal or administrative
action, proceeding, hearing or examination that is not incidental to
its respective duties under this Agreement and which in its opinion
may involve it in any expense or liability; provided, however
-------- -------
that the Depositor, the Servicer, the Special Servicer, the Trustee,
the Extension Advisor or the Directing Certificateholder may in its
discretion undertake any such action, proceeding, hearing or examination
that it may deem necessary or desirable in respect to this Agreement and
the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs
of such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Servicer, the Special Servicer, the Trustee, the Extension
Advisor and the Directing Certificateholder shall be entitled to be
reimbursed therefor out of amounts attributable to the Loans on deposit
in the Certificate Account as provided by Section 3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to indemnify
the Depositor, the Trustee (whether acting in such capacity or as the
Authenticating Agent or Certificate Registrar) and the Trust Fund and each
other and any Affiliate, director, officer, employee or agent thereof, and
hold them harmless, from and against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related out-of-pocket costs,
judgments, and any other out-of-pocket costs, liabilities, fees and expenses
that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Servicer or the Special
Servicer, as the case may be, in the performance of its obligations and
duties under this Agreement or by reason of grossly negligent disregard by
the Servicer or the Special Servicer, as the case may be, of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein.
The Trustee, the Servicer, the Special Servicer or the Depositor, as the
case may be, shall immediately notify the Servicer or the Special Servicer,
as applicable, if a claim is made by a third party with respect to this
Agreement or the Loans entitling it to indemnification hereunder, whereupon
the Servicer or the Special Servicer, as the case may be, shall assume the
defense of such claim and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any
failure to so notify the Servicer or the Special Servicer, as the case may
be, shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Servicer's, or
the Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall
survive the termination of this Agreement and the termination or resignation
of the Servicer, the Trustee and the Special Servicer.
The Depositor agrees to indemnify the Servicer and any Affiliate,
director, officer, employee or agent thereof, and hold them harmless, from
and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any
other out-of-pocket costs, liabilities, fees and expenses that any of them
may sustain arising from or as a result of any breach or failure in the
performance of the Servicer's obligations and duties under this Agreement
arising from or as a result of the inaccuracy of the Loan information
provided by the Depositor to the Servicer via electronic mail. The Servicer
shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement or the Loans entitling it to indemnification
hereunder, whereupon the Depositor shall assume the defense of such claim and
pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so
notify the Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement.
SECTION 6.04. Depositor, Servicer and Special Servicer Not to
-----------------------------------------------
Resign.
- ------
Subject to the provisions of Section 6.02, none of the Depositor, the
Servicer and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except upon (a)
a determination that such party's duties hereunder are no longer permissible
under applicable law or (b) in the case of the Servicer or Special Servicer,
upon the appointment of, and the acceptance of such appointment by, a
successor Servicer or Special Servicer, as applicable and receipt by the
Trustee of written confirmation from each applicable Rating Agency that such
resignation and appointment will not cause such Rating Agency to downgrade,
withdraw or qualify any of then current ratings assigned by such Rating
Agency to any Class of Certificates. Any such determination permitting the
resignation of the Depositor, the Servicer or the Special Servicer pursuant
to above clause (a) above shall be evidenced by an Opinion of Counsel (at the
expense of the resigning party) to such effect delivered to the Trustee. No
such resignation by the Servicer or the Special Servicer shall become
effective until the Trustee or a successor Servicer shall have assumed the
Servicer's or Special Servicer's, as applicable, responsibilities and
obligations in accordance with Section 7.02.
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and
------------------------------------------------------
the Special Servicer.
- --------------------
The Depositor may, but is not obligated to, enforce the obligations of
the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however,
that the Servicer and the Special Servicer shall not be -------- -------
relieved of any of their respective obligations hereunder by virtue of such
performance by the Depositor or its designee. The Depositor shall not have
any responsibility or liability for any action or failure to act by the
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Servicer or the Special Servicer under this Agreement or
otherwise.
(End of Article VI)
ARTICLE VII
DEFAULT
-------
SECTION 7.01. Events of Default; Servicer and Special Servicer
------------------------------------------------
Termination.
- -----------
(a) "Event of Default", wherever used herein, means any one of the
----------------
following events:
(i)
any failure by the Servicer to make (x) any remittance
(including a P&I Advance) required to be made by the Servicer to the
Certificate Account, Servicing Account, Excess Interest Distribution
Account, Interest Reserve Account or either Distribution Account by 4:00
p.m. New York City time on the Servicer Remittance Date or (y) any
Servicing Advance when required to be made pursuant to this Agreement;
or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Servicer for deposit into, or the Servicer to make a
required deposit into the Certificate Account or the REO Account, or to
deposit into, or to remit to the Trustee for deposit into, the Lower-
Tier Distribution Account any amount required to be so deposited or
remitted by the Servicer or the Special Servicer, as the case may be,
pursuant to, and at the time specified by, the terms of this Agreement;
or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a
period of 30 days (15 days in the case of a failure to pay the premium
for any Insurance Policy required to be maintained hereunder) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by any other party hereto, or to the Servicer, the
Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, that with
-------- -------
respect to any such failure which is not curable within such 30-day
period or 15-day period, as applicable, the Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of
thirty (30) days to effect such cure so long as the Servicer or the
Special Servicer, as the case may be, has commenced to cure such failure
within such initial 30-day period or 15-day period, as applicable, and
has diligently pursued, and is continuing to pursue, a full cure; or
(iv) any breach on the part of the Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have
been given to the Servicer or the Special Servicer, as the case may be,
by the Depositor or the Trustee, or to the Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates
of any Class evidencing, as to such Class, Percentage Interests
aggregating not less than 25%; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer or the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received written notice from any of
the Rating Agencies that the continuation of the Servicer or Special
Servicer, as the case may be, has resulted, or would result, in and of
itself, in a downgrading, qualification or withdrawal of the then-
current rating on any Class of Certificates that are rated by a Rating
Agency if the Servicer or Special Servicer, as the case may be, is not
replaced.
(b) If any Event of Default with respect to the 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 such Event of Default shall not have been
remedied, the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, shall, terminate,
by notice in writing to the Defaulting Party, with a copy of such notice to
the Depositor, all of the rights and obligations of the Defaulting Party
under this Agreement and in and to the Loans and the proceeds thereof;
provided, however, that the Defaulting Party shall be
- -------- -------
entitled to the payment of accrued and unpaid compensation and reimbursement
through the date of such termination as provided for under this Agreement for
services rendered and expenses incurred.
From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of and at the expense of the Defaulting Party, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Loans and related documents, or otherwise.
The Servicer and Special Servicer each agree that if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no
later than 20 Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by
it to enable it to assume the Servicer's or the Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Servicer's or the Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, the transfer within five (5) Business Days to the Trustee for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Servicer to the Certificate Account or any
Servicing Account (if it is the Defaulting Party) or by the Special Servicer
to the REO Account (if it is the Defaulting Party) or thereafter be received
with respect to the Loans or any REO Property (provided, however, that the
Servicer and the Special Servicer each shall, -------- -------
if terminated pursuant to this Section 7.01(b), continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances (in the case
of the Servicer) or otherwise, and it and its directors, officers, employees
and agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
(c) The Holder or Holders of more than 50% of the aggregate Certificate
Balance of the then Controlling Class shall be entitled to terminate the
rights and obligations of the Special Servicer under this Agreement, with or
without cause, upon ten (10) Business Days notice to the Special Servicer,
the Servicer and the Trustee, and to appoint a successor Special Servicer;
provided, however, that (i) such successor
- -------- -------
will meet the requirements set forth in Section 7.02 and (ii) as evidenced in
writing by each of the Rating Agencies, the proposed successor of such
Special Servicer will not, in and of itself, result in a downgrading,
withdrawal or qualification of the then current ratings provided by the
Rating Agencies in respect to any Class of then outstanding Certificates that
is rated. No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 7.01(c).
(d) The Servicer and Special Servicer shall, from time to time, take
all such actions as are required by them in order to maintain their
respective status as an approved
servicer and special servicer, as applicable and as pertains to this
transaction, with each of the Rating Agencies.
SECTION 7.02. Trustee to Act; Appointment of Successor.
----------------------------------------
On and after the time the Servicer or the Special Servicer, as the case
may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed, the Trustee shall
be the successor to the Servicer or Special Servicer, as the case may be, in
all respects in its capacity as Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties, liabilities and limitations on
liability relating thereto and that arise thereafter placed on or for the
benefit of the Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such
-------- -------
duties or responsibilities caused by the terminated party's failure under
Section 7.01 to provide information or moneys required hereunder shall not be
considered a default by such successor hereunder.
The appointment of a successor Servicer shall not affect any liability
of the predecessor Servicer which may have arisen prior to its termination as
Servicer, and the appointment of a successor Special Servicer shall not
affect any liability of the predecessor Special Servicer which may have
arisen prior to its termination as Special Servicer. The Trustee in its
capacity as successor to the Servicer or the Special Servicer, as the case
may be, shall not be liable for any of the representations and warranties of
the Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Servicer
or Special Servicer or for any losses incurred by the Servicer pursuant to
Section 3.06 hereunder, nor shall the Trustee be required to purchase any
Loan hereunder.
As compensation therefor, the Trustee as successor Servicer shall be
entitled to the Servicing Fees and all fees relating to the Loans which the
Servicer would have been entitled to if the Servicer had continued to act
hereunder, including but not limited to any income or other benefit from any
Permitted Investment pursuant to Section 3.06, and as successor to the
Special Servicer shall be entitled to the Special Servicing Fees to which the
Special Servicer would have been entitled if the Special Servicer had
continued to act hereunder. Should the Trustee succeed to the capacity of
the Servicer or the Special Servicer, the Trustee shall be afforded the same
standard of care and liability as the Servicer or the Special Servicer, as
applicable, hereunder notwithstanding anything in Section 8.01 to the
contrary, but only with respect to actions taken by it in its role as
successor Servicer or successor Special Servicer, as the case may be, and not
with respect to its role as Trustee hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to
act as successor to the Servicer or Special Servicer, or shall, if it is
unable to so act, or if the Trustee is not approved as a servicer or special
servicer, as applicable, by each Rating Agency or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in
writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth herein, as the successor to the Servicer
or the Special Servicer, as applicable, hereunder in the assumption of all
or any part of the responsibilities, duties or liabilities of the Servicer
or Special Servicer hereunder. No appointment of a successor to the
Servicer or the Special Servicer hereunder shall be effective until the
assumption in writing by the successor to the Servicer or the Special
Servicer of all its responsibilities, duties and liabilities hereunder that
arise thereafter. Pending appointment of a successor to the Servicer or the
Special Servicer hereunder, unless the Trustee shall be prohibited by law
from so acting, the Trustee shall act in such capacity as herein above
provided.
In connection with such appointment and assumption of a successor to the
Servicer or Special Servicer as described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Loans
as it and such successor shall agree; provided, however, that no
-------- -------
such compensation with respect to a successor Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Servicer or Special Servicer, as the case may be, hereunder. The
Trustee, the Servicer or the Special Servicer (whichever is not the
terminated party) and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. Any
costs and expenses associated with the transfer of the servicing function
(other than with respect to a termination without cause) under this Agreement
shall be borne by the predecessor Servicer or Special Servicer.
SECTION 7.03. Notification to Certificateholders.
----------------------------------
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and
all Certificateholders notice of such occurrence, unless such default shall
have been cured.
SECTION 7.04. Waiver of Events of Default.
---------------------------
The Holders of Certificates representing at least 662/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the
receipt of notice from the Trustee of the occurrence of such Event of
Default; provided, however, that an Event of Default under clause (i) of
-------- -------
Section 7.01(a) may be waived only by all of the Certificateholders of each
affected Class. Upon any such waiver of an Event of Default, such Event of
Default shall cease to exist and shall be deemed to have been remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person
held such Certificates.
SECTION 7.05. Trustee Advances.
----------------
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances, the Trustee shall perform such obligations
(x) within one Business Day of such failure by the Servicer with respect to
Servicing Advances to the extent a Responsible Officer of the Trustee has
been notified in writing of such failure with respect to such Servicing
Advances and (y) by the close of business, New York City time, on the related
P&I Advance Date with respect to P&I Advances. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the
Servicer's rights with respect to Advances hereunder, including, without
limitation, the Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement
caused by such Servicer's default in its obligations hereunder); provided,
--------
however, that if Advances made by both the Trustee and the Servicer
- -------
shall at any time be outstanding, or any interest on any Advance shall be
accrued and unpaid, all amounts available to repay such Advances and the
interest thereon hereunder shall be applied entirely to the Advances
outstanding to the Trustee, until such Advances shall have been repaid in
full, together with all interest accrued thereon, prior to reimbursement of
the Servicer for such Advances. The Trustee shall be entitled to
conclusively rely on any notice given with respect to a Nonrecoverable
Advance hereunder.
(End of Article VII)
ARTICLE VIII
CONCERNING THE TRUSTEE
----------------------
SECTION 8.01. Duties of Trustee.
-----------------
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. If an Event of Default occurs and is
continuing, then (subject to Section 8.02(vii) below) the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement (other than the Mortgage Files,
the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of
this Agreement. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Trustee shall make a
request to the responsible party to have the instrument corrected. The
Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Servicer or the Special Servicer,
and accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
-------- -------
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally 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; and
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement (unless a higher percentage of Voting Rights is required for
such action).
(iv) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.01, the Trustee shall
have no duty except in the capacity as successor Servicer or successor
Special Servicer (A) to see to any recording, filing, or depositing of
this Agreement or any agreement referred to herein or any financing
statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording or filing or depositing
or to any rerecording, refiling or redepositing of any thereof, (B) to
see to any insurance, and (C) to confirm or verify the contents of any
reports or certificates of the Servicer or Special Servicer delivered to
the Trustee pursuant to this Agreement reasonably believed by the
Trustee to be genuine and to have been signed or presented by the proper
party or parties.
SECTION 8.02. Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or
other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless, in the Trustee's reasonable
opinion, such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall
not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be 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 hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders
of Certificates entitled to at least 50% of the Voting Rights; provided,
--------
however, that if the payment within a reasonable time to the Trustee
-------
of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such reasonable examination
shall be paid by the Servicer or, if paid by the Trustee, shall
be repaid by the Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys; provided, however, that the appointment
-------- -------
of such agents or attorneys shall not relieve the Trustee of its duties
or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or omission
of the Servicer, the Special Servicer, the Directing Certificateholder
or the Extension Advisor (unless the Trustee is acting as Servicer,
Special Servicer, the Directing Certificateholder or the Extension
Advisor, as the case may be) or of the Depositor; and
(ix) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the
power granted hereunder.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
-------------------------------------------------
Certificates or Loans.
- ---------------------
The recitals contained herein and in the Certificates, other than the
acknowledgments of the Trustee in Sections 2.02 and 2.04 and the signature,
if any, of the Trustee set forth on any outstanding Certificate, shall be
taken as the statements of the Depositor, the Servicer or the Special
Servicer, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee does not make any representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature, if any, of the Trustee set forth thereon) or of any Loan
or related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of
the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor in respect of the assignment of the Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or
any other account by or on behalf of the Depositor, the Servicer, the Special
Servicer, the Extension Advisor or the Trustee. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by
the Depositor, the Servicer, the Special Servicer or the Extension Advisor,
and accepted by the Trustee, in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
----------------------------
The Trustee in its individual capacity and not as Trustee, may become
the owner or pledgee of Certificates, and may deal with the Depositor, the
Servicer, the Special Servicer, the Initial Purchaser and the Underwriter in
banking transactions, with the same rights it would have if it were not
Trustee.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
------------------------------------------------
Trustee.
- -------
(a) As compensation for the performance of its duties, the Trustee will
be paid the Trustee Fee, equal to one month's interest at the Trustee Fee
Rate, which shall cover recurring and otherwise reasonably anticipated
expenses of the Trustee. The Trustee Fee shall be paid with respect to each
Loan and REO Loan at a rate equal to 0.004% per annum computed on the basis
of a 360-day year consisting of twelve 30-day months on the Stated Principal
Balance of such Loan or REO Loan. The Trustee Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee
of an express trust) shall constitute the Trustee's sole form of
compensation for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties of the Trustee hereunder.
(b) The Trustee and any Affiliate, director, officer, employee or agent
of the Trustee shall be entitled to be indemnified and held harmless by the
Trust Fund (to the extent of amounts on deposit in the Lower-Tier
Distribution Account from time to time) against any loss, liability or
expense (including, without limitation, costs and expenses of litigation, and
of investigation, counsel fees, damages, judgments and amounts paid in
settlement, and expenses incurred in becoming successor servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in
connection with, this Agreement, the Loans, the Certificates, the Stichting
Documents 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 or under
the Stichting Documents; 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
(i) allocable overhead, (ii) expenses or disbursements incurred or made by or
on behalf of the Trustee in the normal course of the Trustee's performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or
(iv) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of grossly negligent disregard
of such obligations or duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The
provisions of this Section 8.05(b) shall survive any resignation or removal
of the Trustee and appointment of a successor thereto.
SECTION 8.06. Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank or national
banking association, organized and doing business under the laws of any state
or the United States of America, authorized under such laws to exercise
corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during
any period when the Trustee is acting as, or has become successor to, the
Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "AA-" by Fitch and "Aa3" by Moody's and that has a short-term rating of
"A-1" by S&P (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any
of then current ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In the event the place of business from which the
Trustee administers the Upper-Tier REMIC and the Lower-Tier REMIC is in a
state or local jurisdiction that imposes a tax on the Trust Fund on the net
income of a REMIC (other than a tax corresponding to a tax imposed under the
REMIC Provisions), the Trustee shall elect either to (i) resign immediately
in the manner and with the effect specified in Section 8.07, (ii) pay such
tax at no expense to the Trust Fund or (iii) administer the Upper-Tier REMIC
and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
SECTION 8.07. Resignation and Removal of the Trustee.
--------------------------------------
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(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 Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation, then the Depositor may remove the Trustee and appoint a
successor trustee acceptable to the Servicer by written instrument, in
duplicate, which instrument shall be delivered to the Trustee so removed and
to the successor trustee. A copy of such instrument shall be delivered to the
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy
of such instrument shall be delivered to the Depositor, the Special Servicer
and the remaining Certificateholders by the Servicer.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 8.07 shall not
become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the predecessor
Trustee shall be entitled to the payment of accrued and unpaid compensation
and reimbursement as provided for under this Agreement for services rendered
and expenses incurred. No Trustee shall be personally liable for any action
or omission of any successor Trustee.
SECTION 8.08. Successor Trustee.
-----------------
(a) Any successor Trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Servicer, the Special
Servicer and to its predecessor Trustee, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee, shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as Trustee herein. The
predecessor Trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (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
Servicer, the Special Servicer and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required to more fully and certainly vest and confirm in the successor
Trustee all such rights, powers, duties and obligations, and to enable the
successor Trustee to perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 8.08, the Servicer shall mail notice of the succession of
such Trustee hereunder to the Depositor and the Certificateholders. If the
Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, such successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
----------------------------------
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee, hereunder;
provided, that, in the case of the Trustee, such successor Person shall be
- --------
eligible under the provisions of Section 8.06, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. The Trustee will
provide notice of such event to the Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Servicer and the Trustee may consider necessary or desirable.
If the Servicer shall not have joined in such appointment within 15 days
after the receipt by it of a request to do so, or in case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then-separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-
trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or co-
trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
-------------------------
The Trustee may, with the consent of the Servicer, appoint one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the
Depositor or any Affiliate of the Depositor. Each Custodian shall be subject
to the same obligations and standard of care as would be imposed on 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. Any
Custodian appointed hereunder must maintain a fidelity bond and errors and
omissions policy in an amount customary for Custodians which serve in such
capacity in commercial mortgage loan securitization transactions.
SECTION 8.12. Access to Certain Information.
-----------------------------
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee a copy of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer
and sale of the Class of Certificates to which such Non-Registered
Certificate relates. In addition, if any such private placement memorandum
or disclosure document is revised, amended or supplemented at any time
following the delivery thereof to the Trustee, the Depositor promptly shall
inform the Trustee of such event and shall deliver to the Trustee a copy of
the private placement memorandum or disclosure document, as revised, amended
or supplemented.
The Trustee shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance written
notice, make available during normal
business hours for review by any Holder of a Certificate, the Depositor, the
Servicer, the Special Servicer, the Extension Advisor, the Directing
Certificateholder, any Rating Agency or any other Person to whom the Trustee
believes such disclosure is appropriate, originals or copies of the following
items to the extent such documents have been delivered to the Trustee: (i) in
the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Trustee and
(ii) in all cases, (a) this Agreement and any amendments hereto entered into
pursuant to Section 10.01, (b) all statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (c) all Officer's Certificates delivered to the Trustee since
the Closing Date pursuant to Section 3.13, (d) all accountants' reports
delivered to the Trustee since the Closing Date pursuant to Section 3.14,
(e) any inspection report prepared by the Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Trustee and Servicer in respect
of each Mortgaged Property pursuant to Section 3.12(a), (f) as to each Loan
pursuant to which the related Mortgagor is required to deliver such items or
the Special Servicer has otherwise acquired such items, the most recent
annual operating statement and rent roll of the related Mortgaged Property
and financial statements of the related Mortgagor and any other reports of
the Mortgagor collected by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(b),
together with the accompanying written reports to be prepared by the Special
Servicer and delivered to the Trustee pursuant to Section 3.12(b), (g) any
and all notices, reports and Environmental Assessments delivered to the
Trustee with respect to any Mortgaged Property securing a Defaulted Loan as
to which the environmental testing contemplated by Section 3.09(c) revealed
that either of the conditions set forth in clauses (i) and (ii) of the first
sentence thereof was not satisfied (but only for so long as such Mortgaged
Property or the related Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Loan entered into by
the Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.20 (but only for so long as the affected Loan is part of the Trust
Fund), (i) any and all Officer's Certificates delivered to the Trustee to
support the Servicer's determination that any P&I Advance or Servicing
Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (j) any and all of the
Loan documents contained in the Mortgage File, (k) any and all Appraisals
obtained pursuant to the definition of "Appraisal Reduction" herein, (l)
information regarding the occurrence of Servicing Transfer Events as to the
Loans and (m) any and all Sub-Servicing Agreements and any amendments thereto
and modifications thereof.
Copies of any and all of the foregoing items will be available from the
Trustee upon written request; provided, however, that the Trustee
-------- -------
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies, except in the case of
copies provided to the Rating Agencies, which shall be free of charge. In
addition, without limiting the generality of the foregoing, the Holder of any
Class I, Class J or Class K Certificate may upon written request from the
Trustee obtain a copy of any factual report (other than the Asset Status
Report) delivered to the Rating Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition to the
reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)),
the Servicer and the Trustee shall, in accordance with such reasonable rules
and procedures as each may adopt (which may include the requirement that an
agreement that provides that such information shall be used solely for
purposes of evaluating the investment characteristics of the Certificates be
executed), also provide the reports available to Certificateholders pursuant
to Section 4.02, as well as certain additional information received by the
Servicer or the Trustee, as the case may be, to any Certificateholder, the
Underwriter, the Initial Purchaser, any Certificate Owner or any prospective
investor identified as such by a Certificate Owner or the Underwriter, that
requests such reports or information; provided that the Servicer or the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(c) With respect to any information furnished by the Trustee or the
Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the case
may be, shall be entitled to indicate the source of such information and the
Trustee or Servicer, as applicable, may affix thereto any disclaimer it deems
appropriate in its discretion. The Trustee or the Servicer, as applicable,
shall notify Certificateholders of the availability of any such information
in any manner as it, in its sole discretion, may determine. In connection
with providing access to or copies of the items described in the preceding
paragraph, the Trustee or the Servicer, as the case may be, may require (a)
in the case of Certificate Owners, a confirmation executed by the requesting
Person substantially in form and substance reasonably acceptable to the
Servicer or Trustee, as applicable, generally to the effect that such Person
is a beneficial holder of Certificates or an investment advisor representing
such Person and is requesting the information solely for use in evaluating
such Person's investment in the Certificates and will otherwise keep such
information confidential and (b) in the case of a prospective purchaser or an
investment advisor representing such Person, confirmation executed by the
requesting Person in form and substance reasonably acceptable to the Trustee
or the Servicer, as the case may be, generally to the effect that such Person
is a prospective purchaser of a Certificate or an interest therein or an
investment advisor representing such Person, and is requesting the
information solely for use in evaluating a possible investment in
Certificates. Neither the Servicer nor the Trustee shall be liable for the
dissemination of information in accordance with this Agreement.
SECTION 8.13. Representations and Warranties of the Trustee.
---------------------------------------------
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a New York banking corporation, duly
organized,
validly existing and in good standing under the laws of the State of New
York;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's charter and by-laws or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee
in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights
of creditors of banks specifically and (b) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or, in the Trustee's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this
Agreement, and which, if not obtained would not have a materially
adverse effect on the ability of the Trustee to perform its obligations
hereunder.
(End of Article VIII)
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
----------------------------------
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
-------------------------------------------------
Loans.
- -----
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Servicer, the
Special Servicer and the Trustee (other than the obligations of the Trustee
to provide for and make payments to Certificateholders as hereafter set
forth) shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund at a price equal to (a) the sum of
(1) the aggregate Purchase Price of all the Loans (exclusive of REO Loans)
included in the Trust Fund and (2) the Appraised Value of each REO Property,
if any, included in the Trust Fund (such Appraisals in this clause (a)(2) to
be conducted by an Appraiser selected and mutually agreed upon by the
Servicer and the Trustee, and approved by more than 50% of the Voting Rights
of the Classes of Certificates then outstanding (other than the Controlling
Class if the Controlling Class is exercising such option unless the
Controlling Class is the only Class of Certificates then outstanding)), minus
-----
(b) solely in the case where the Servicer is effecting such purchase, the
aggregate amount of unreimbursed Advances, together with any interest accrued
and payable to the Servicer in respect of such Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees, remaining
outstanding (which items shall be deemed to have been paid or reimbursed to
the Servicer in connection with such purchase) and (ii) the final payment or
other liquidation (or any advance with respect thereto) of the last Loan or
REO Property remaining in the Trust Fund; provided, however, that in no event
-------- -------
shall the trust created hereby continue beyond the earlier of (i) the Rated
Final Distribution Date and (ii) expiration of 21 years from the death of
the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James's, living on the
date hereof.
The Mortgage Loan Seller may, at its option, elect to purchase all of
the Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the
Trustee and the other parties hereto within 60 days of the first Distribution
Date on which the aggregate Stated Principal Balances of the Loans and any
REO Loans remaining in the Trust Fund is less than 3.25% of the aggregate
Cut-off Date Principal Balance of the Loans set forth in the Preliminary
Statement. If the Mortgage Loan Seller does not exercise such option within
60 days after it becomes exercisable, the Holders of a majority of the
Percentage Interests in the Controlling Class can notify the Mortgage Loan
Seller of their intention to exercise such option and if the Mortgage Loan
Seller does not exercise such option within 10 Business Days thereafter, such
Holders of the Controlling Class will be entitled to exercise such option. If
the Holders of a majority of the Percentage Interests of the Controlling
Class do not exercise such option within 60 days after it becomes
exercisable, the Servicer can notify the Mortgage Loan Seller of its
intention to exercise such option and if the Mortgage Loan Seller does not
exercise such option within 10 Business Days thereafter, the Servicer will
be entitled to exercise such option. Any purchaser pursuant to Section
9.01(a) of a Loan serviced by a Seller-Servicer shall be required to enter
into a servicing agreement with such Seller-Servivcer in the form of the
related "Prior Servicing Agreement" (as defined in the Seller-Servicer
Agreement) or shall be required to pay such Seller-Servicer the termination
fee that would be payable thereunder.
In the event that the Mortgage Loan Seller, the Holders of the
Controlling Class or the Servicer purchases all of the Loans and each REO
Property remaining in the Trust Fund in accordance with the preceding
paragraph, the Mortgage Loan Seller, the Holders of the Controlling Class or
the Servicer, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be
deposited in the Certificate Account). In addition, the Servicer shall
transfer to the Lower-Tier Distribution Account all amounts required to be
transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held
for future distribution. Upon confirmation that such final deposits have
been made, the Trustee shall release or cause to be released to the Mortgage
Loan Seller, the Servicer or the Holders of the Controlling Class, as
applicable, the Mortgage Files for the remaining Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the
Mortgage Loan Seller, the Servicer or the Holders of the Controlling Class,
as applicable, as shall be necessary to effectuate transfer of the Loans and
REO Properties remaining in the Trust Fund and its rights under the Mortgage
Loan Purchase Agreement.
For purposes of this Section 9.01, the Directing Certificateholder, with
the consent of the Holders of the Controlling Class, shall act on behalf of
the Holders of the Controlling Class in purchasing the assets of the Trust
Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be given
promptly by the Trustee by letter to the Certificateholders and each Rating
Agency and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution
on the Certificates, or (b) otherwise during the month of such final
distribution on or before the P&I Advance Determination Date in such month,
in each case specifying (i) the Distribution Date upon which the Trust Fund
will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Certificates at the offices of
the Certificate Registrar or such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount of
any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to
Section 3.04(b) and upon presentation and surrender of the Certificates by
the Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of
the amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and
surrendered. Amounts transferred from the Lower-Tier Distribution Account to
the Upper-Tier Distribution Account as of the final Distribution Date shall
be allocated for the purposes, in the amounts and in accordance with the
priority set forth in Sections 4.01(a) and 4.01(e) and shall be distributed
in termination and liquidation of the Uncertificated Lower-Tier Interests and
the Class LR Certificates in accordance with Sections 4.01(b) and (d). Any
funds not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed
of in accordance with this Section 9.01 and Section 4.01(h).
Anything in this Section 9.01 to the contrary notwithstanding, the
holders of the Class V-1 Certificates shall receive that portion of the
proceeds of a sale of the assets of the Trust Fund allocable to accrued and
unpaid Excess Interest.
SECTION 9.02. Additional Termination Requirements.
-----------------------------------
In the event the Mortgage Loan Seller, the Holders of the Controlling
Class or the Servicer purchases all of the Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust Fund shall
be terminated in accordance with the following additional requirements, which
are intended to meet the definition of a "qualified liquidation" in
Section 860F(a)(4) of the Code:
(i) the Servicer shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Upper-Tier
REMIC's and the Lower-Tier REMIC's final Tax Return 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;
(ii) during such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund to the Mortgage Loan
Seller, the Holders of the Controlling Class or the Servicer, as
applicable, for cash; and
(iii) immediately following the making of the final payment on the
Uncertificated Lower-Tier Interests and the Certificates, the Trustee
shall distribute or credit, or cause to be distributed or credited, to
the Holders of the Class LR Certificates (in the case of the Lower-Tier
REMIC) and the Class R Certificates (in the case of the Upper-Tier
REMIC) all cash on hand (other than cash retained to meet claims), and
the Trust Fund and each of the Lower-Tier REMIC and the Upper-Tier REMIC
shall terminate at that time.
SECTION 9.03. Purchase of ARD Loans.
----------------------
The Holder of a 100% Percentage Interest in the Class LR Certificates
may purchase any ARD Loan on its Anticipated Repayment Date at a price equal
to the sum of the following:
(i) 100% of the outstanding principal balance of such ARD Loan
on such Anticipated Repayment Date (less any P&I Advances previously made on
account of principal);
(ii) all unpaid interest accrued on such principal balance of
such ARD Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date (less any P&I
Advances previously made on account of interest);
(iii) the aggregate amount of all unreimbursed Advances with
respect to such ARD Loan, with interest thereon at the Advance Rate, and
unpaid Servicing Fees, Special Servicing Fees, Trustee Fees and Trust Fund
expenses; and
(iv) the amount of any expenses incurred by the Trust Fund in
connection with such purchase;
provided, however, that such purchase may be consummated only if the
- -------- -------
Holder, at its expense, provides the Trustee with an opinion of counsel to
the effect that such purchase would not (x) result in a gain which would be
subject to the tax on net income derived from "prohibited transactions"
imposed by Code Section 860F(a)(1) or otherwise result in the imposition of
any other tax on the Lower-Tier REMIC or the Upper-Tier REMIC under the REMIC
Provisions or (y) cause either the Upper-Tier REMIC or the Lower-Tier REMIC
to fail to qualify as a REMIC.
The proceeds of any such purchase hereunder shall be deposited in the
Certificate Account and disbursed as provided herein.
(End of Article IX)
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.01. Amendment.
---------
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or either the Lower-Tier REMIC or the
Upper-Tier REMIC, provided that the Trustee has received an Opinion of
Counsel to the effect that (a) such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely affect in
any material respect the interests of any Certificateholder, and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained, provided
that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an
Opinion of Counsel addressed to the Trustee, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of
Section 5.02(d) or any other provision hereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC "residual
interests," provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of
Counsel addressed to the Trustee, cause the Trust Fund, the Lower-Tier
REMIC, the Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the then current rating or ratings assigned to
each Class of Certificates by each Rating Agency as confirmed in
writing.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates of
such Class; provided, however, that no such
-------- -------
amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) amend this Section 10.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment or
the exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment to each Rating Agency and each
Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 10.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment
of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 10.01(a) or (c) shall be payable out of the
Certificate Account.
SECTION 10.02. Recordation of Agreement; Counterparts.
--------------------------------------
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
cost of which shall be paid by the Depositor) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
SECTION 10.03. Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up
of the Trust Fund, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Loan,
unless, with respect to any suit, action or proceeding upon or under or with
respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance
thereof, as hereinbefore provided, and unless also (except in the case of a
default by the Trustee) the Holders of Certificates of any Class evidencing
not less than 25% of the related Percentage Interests in such Class shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it hereunder or to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order or
direction of any of the Holders of Certificates unless such Holders have
offered to the Trustee reasonable security against the costs, expenses and
liabilities which may be incurred therein or hereby.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such
Holder, which priority or preference is not otherwise provided for herein, or
to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 10.03(c), each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 10.04. Governing Law.
-------------
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
SECTION 10.05. Notices.
-------
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if personally delivered at or mailed by registered mail,
postage prepaid (except for notices to the Trustee which shall be deemed to
have been duly given only when received), to: (i) in the case of the
Depositor, Credit Suisse First Boston Mortgage Securities Corp., Eleven Madison
Avenue, New York, New York 10010, Attention: Compliance Department, telecopy
number: (212) 325-8162; (ii) in the case of the Servicer, First Union
National Bank, First Union Capital Markets Group, One First Union Center, 301
South College Street TW-9, Charlotte, North Carolina 28288-1075, Attention:
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates Series 1997-C1, telecopy number: (704) 383-9356;
(iii) in the case of the Special Servicer, Lennar Partners, Inc., Attention:
Jeffrey P. Krasnoff, telecopy number: (305) 226-7691; (iv) in the case of the
Trustee, The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New
York, NY 10001, Attention: Structured Finance Services (MBS) - Credit Suisse
First Boston Mortgage Securities Corp., Series 1997-C1, telecopy number:
(212) 946-8191; (v) in the case of the Rating Agencies, (a) Fitch Investors
Servicer, L.P., One State Street Plaza, New York, New York 10004, Attention:
Commercial Mortgage Monitoring Group, telecopy number: (212) 908-0500;
(b) Moody's Investor Services, 99 Church Street, New York, New York 10007,
Attention: Commercial Mortgage Surveillance Group, telecopy number: (212)
553-0300; and (c) Standard & Poor's, 26 Broadway, New York, New York 10004,
Attention: Surveillance Manager, telecopy number (212) 412-0539; and (vi) in
the case of the Mortgage Loan Seller, Credit Suisse First Boston Mortgage
Capital L.L.C., Eleven Madison Avenue, New York, New York 10010, Attention:
Compliance Department, telecopy number (212) 325-8162; or as to each such
Person such other address as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register. Any notice so mailed within the time prescribed
in this Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
SECTION 10.06. Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 10.07. Grant of a Security Interest.
----------------------------
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) the Depositor shall be
deemed to have granted to the Trustee (in such capacity) a first priority
security interest in the Depositor's entire right, title and interest in and
to the assets comprising the Trust Fund, including without limitation, the
Loans, all principal and interest received or receivable with respect to the
Loans (other than principal and interest payments due and payable prior to
the Cut-off Date and Principal Prepayments received prior to the Cut-off
Date), all amounts held from time to time in the Certificate Account, the
Distribution Accounts and, if established, the REO Account, and all
reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 10.07
shall constitute notice to the Trustee pursuant to any of the requirements of
the applicable UCC.
SECTION 10.08. Successors and Assigns; Beneficiaries.
-------------------------------------
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 10.09. Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 10.10. Notices to the Rating Agencies.
------------------------------
(a) The Trustee shall use reasonable efforts promptly to provide notice
to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Servicer or the
Special Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Loans by the Mortgage Loan Seller pursuant
to Section 7 of the Mortgage Loan Purchase Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account; and
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee.
(c) Each of the Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) all reports and other items for Significant Loans delivered
by each of the Servicer and Special Servicer pursuant to Section 3.12;
(iii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iv) each waiver and consent provided pursuant to Section 3.08
for Significant Loans.
(d) The Trustee shall promptly furnish to each Rating Agency a copy of
the statement to Certificateholders distributed pursuant to Section 4.02(a).
(End of Article X)
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
By:
--------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
FIRST UNION NATIONAL BANK
Servicer
By:
--------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LENNAR PARTNERS, INC.
Special Servicer
By:
--------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
THE CHASE MANHATTAN BANK
Trustee
By:
--------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of June, 1997 before me, a notary public in and for said
State, personally appeared ________________________ known to me to be a
______________________ of Credit Suisse First Boston Mortgage Securities
Corp. one of the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of such corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------------------------------
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of June, 1997 before me, a notary public in and for said
State, personally appeared _____________________________ known to me to be a
________________________ of The Chase Manhattan Bank, a New York banking
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of such banking corporation, and
acknowledged to me that such banking corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------------------------------
Notary Public
(Notarial Seal)
STATE OF ____________ )
) ss.:
COUNTY OF ____________ )
On the 30th day of June, 1997 before me, a notary public in and for said
State, personally appeared ___________________ known to me to be a __________
of First Union National Bank, a national banking association that executed
the within instrument, and also known to me to be the person who executed it
on behalf of such national banking association, and acknowledged to me that
such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------------------------------
Notary Public
(Notarial Seal)
STATE OF ____________ )
) ss.:
COUNTY OF ____________ )
On the 30th day of June, 1997 before me, a notary public in and for said
State, personally appeared ___________________ known to me to be a __________
of Lennar Partners, Inc., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf
of such corporation, and acknowledged to me that such corporation executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------------------------------
Notary Public
(Notarial Seal)
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS A-1A(A)(B)(C)
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON
THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
---
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: % APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE
------- OF THE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: $ PREPAYMENTS RECEIVED ON OR BEFORE THE CUT-OFF
--------- DATE: $1,356,228,736
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SERVICER: FIRST UNION NATIONAL BANK
JUNE 1, 1997
CUT-OFF DATE: JUNE 11, 1997 SPECIAL SERVICER: LENNAR PARTNERS, INC.
CLOSING DATE: JUNE 30, 1997
FIRST DISTRIBUTION DATE: TRUSTEE: THE CHASE MANHATTAN BANK
JULY 20, 1997
APPROXIMATE AGGREGATE CUSIP NO. 22540A__
CERTIFICATE BALANCE
OF THE CLASS A-1(A)(B)(C) CERTIFICATE NO.: __
CERTIFICATES
AS OF THE CLOSING DATE:
$______________
THIS CLASS A-1(A)(B)(C) CERTIFICATE evidences a beneficial ownership interest
in a trust fund, consisting primarily of (i) a pool of commercial and
multifamily mortgage loans (the "Loans"), all interest and principal received
-----
or receivable on or with respect to the Loans (other than payments of
principal and interest due and payable on the Loans on or before the Cut-off
Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans and (v) the rights of the
Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
------------
is the registered owner of the interest evidenced by this Certificate in the
Class A-1(A)(B)(C) Certificates issued by the Trust Fund created pursuant to
the Pooling and Servicing Agreement, dated as of June 1, 1997 (the "Pooling
-------
and Servicing Agreement"), among Credit Suisse First Boston Mortgage
- -----------------------
Securities Corp. (hereinafter called the "Depositor", which term includes any
---------
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
------------
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class A-1(A)(B)(C) Certificates. The Certificates are designated as the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1997-C1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class
A-1(A)(B)(C) Pass-Through Rate specified above on the Certificate Balance of
this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the General Available
Distribution Amount to be distributed on the Certificates of this Class as of
such Distribution Date, with a final distribution to be made upon retirement
of this Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1(A)(B)(C) Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance and in integral multiples of $1,000 in excess thereof.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein
or to correct any error, (iii) to change the timing and/or nature of deposits
in the Certificate Account, the Distribution Accounts or the REO Account,
provided that (A) the P&I Advance Date shall not be later than the related
Distribution Date, (B) such change would not adversely affect in any material
respect the interests of any Certificateholder, as evidenced by an opinion of
counsel (at the expense of the party requesting the amendment) and (C) such
change would not result in the downgrading, qualification or withdrawal of
the then current ratings assigned to any Class of Certificates by any Rating
Agency, as evidenced by a letter from each Rating Agency to such effect, (iv)
to modify, eliminate or add to any of its provisions (A) to such extent as
shall be necessary to maintain the qualification of the Trust Fund (or either
the Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize
the risk of imposition of any tax on the Trust Fund, provided that the
Trustee has received an opinion of counsel (at the expense of the party
requesting the amendment) to the effect that (1) such action is necessary or
desirable to maintain such qualification or to avoid or minimize such risk
and (2) such action will not adversely affect in any material respect the
interests of any holder of the Certificates or (B) to restrict the transfer
of the Residual Certificates, provided that the Depositor has determined that
the then-current ratings of any Class of the Certificates will not be
downgraded, qualified or withdrawn, as evidenced by a letter from each Rating
Agency to such effect, and that any such amendment will not give rise to a
federal tax with respect to the transfer of the Residual Certificates to a
non-permitted transferee, (v) to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement or any
other change, provided that such action will not adversely affect in any
material respect the interests of any Certificateholder or (vi) to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the then current ratings assigned to each Class of
Certificates by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer,
the Special Servicer, the Depositor, the Trustee or any other specified
person in accordance with such amendment will not result in the imposition of
a tax on the REMIC constituted by the Trust Fund or cause the Trust Fund (or
either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a
REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
--------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1(A)(B)(C) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: ______________________ ________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- -----------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
_________, as its agent.
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON
THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
---
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
PASS-THROUGH RATE: APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
7.2600% THE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION:
$54,456,214.00 PREPAYMENTS RECEIVED ON OR BEFORE THE CUT-OFF DATE:
$1,356,228,736
DATE OF POOLING AND
SERVICING
AGREEMENT: AS OF SERVICER: FIRST UNION NATIONAL BANK
JUNE 1, 1997
CUT-OFF DATE:
JUNE 11, 1997 SPECIAL SERVICER: LENNAR PARTNERS, INC.
CLOSING DATE:
JUNE 30, 1997
FIRST DISTRIBUTION
DATE: TRUSTEE: THE CHASE MANHATTAN BANK
JULY 20, 1997
APPROXIMATE AGGREGATE CUSIP NO. 22540A AP 3
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATE NO.: __
CERTIFICATES
AS OF THE CLOSING DATE:
$54,456,214.00
THIS CLASS A-2 CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received or
-----
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets
as from time to time are deposited in the Certificate
Account, the Distribution Accounts, the Excess Interest Distribution Account,
the Interest Reserve Account, any Servicing Accounts, and, if established,
the REO Account; (iii) any REO Property; (iv) the rights of the mortgagee
under all Insurance Policies with respect to the Loans and (v) the rights of
the Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
------------
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 1997 (the "Pooling and
-----------
Servicing Agreement"), among Credit Suisse First Boston Mortgage Securities
- -------------------
Corp. (hereinafter called the "Depositor", which term includes any successor
---------
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions
of the Pooling and Servicing Agreement is set forth hereafter. To the extent
not defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
------------
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class A-2 Certificates. The Certificates are designated as the Credit
Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1997-C1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-2
Pass-Through Rate specified above on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the sum of the General
Available Distribution Amount and the Private Loan Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of
this Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Loans and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance and in integral multiples of $1,000 in excess
thereof. If the Certificate Balance of the Class A-2 Certificates does not
equal an integral multiple of $10,000, then a single additional Class A-2
Certificate may be issued in a minimum denomination of authorized initial
Certificate Balance that includes the excess of (i) the initial Certificate
Balance of Class A-2 over (ii) the largest integral multiple of $1,000 that
does not exceed such amount.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or to correct any error,
(iii) to change the timing and/or nature of deposits in the Certificate
Account, the Distribution Accounts or the REO Account, provided that (A) the
P&I Advance Date shall not be later than the related Distribution Date, (B)
such change would not adversely affect in any material respect the interests
of any Certificateholder, as evidenced by an opinion of counsel (at the
expense of the party requesting the amendment) and (C) such change would not
result in the downgrading, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency to such effect, (iv) to modify,
eliminate or add to any of its provisions (A) to such extent as shall be
necessary to maintain the qualification of the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize the
risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an opinion of counsel (at the expense of the party requesting
the amendment) to the effect that (1) such action is necessary or desirable
to maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan
Seller, the Holders of the Controlling Class or the Servicer of all the Loans
and each REO Property remaining in the Trust Fund and (ii) the final payment
or other liquidation (or any advance with respect thereto) of the last Loan
or REO Property remaining in the Trust Fund. In no event, however, will the
trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of Joseph P. Kennedy, the late Ambassador of the United States to the Court
of St. James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
---------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- ------------------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
__________, as its agent.
EXHIBIT A-3
FORM OF CLASS A-X CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS A-X
THE NOTIONAL BALANCE ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE
CLASS A-X CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL
PAYMENTS AND LOSSES ON THE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT
TO THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
---
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 30, 1997, WITH AN INITIAL COUPON RATE
EFFECTIVELY CONSISTING OF THE RIGHT TO INTEREST AT THE COMBINED WEIGHTED
AVERAGE NET MORTGAGE RATE IN EXCESS OF THE VARIOUS COUPON RATES APPLICABLE TO
THE OTHER REGULAR INTERESTS ISSUED BY THE UPPER-TIER REMIC. THIS CERTIFICATE
HAS BEEN ISSUED WITH $5,758.80 OF OID PER $100,000 OF INITIAL NOTIONAL
BALANCE, THE MONTHLY YIELD TO MATURITY EXPRESSED ON AN ANNUAL BASIS IS 8.495%
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL SHORT ACCRUAL PERIOD IF
$54.89 PER $100,000 OF INITIAL NOTIONAL BALANCE, COMPUTED BY ACCRUING YIELD
DURING THE INITIAL PERIOD ON THE BASIS OF DAILY COMPOUNDING AND ASSUMING THAT
THE UNDERLYING LOANS WILL PREPAY AT 0% CPR AND THAT THE ARD LOANS WILL PREPAY
IN FULL ON THEIR ANTICIPATED REPAYMENT DATE.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
PASS-THROUGH RATE:
Variable APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION:
$1,356,228,736 PREPAYMENTS RECEIVED ON OR BEFORE THE CUT-OFF DATE:
$1,356,228,736
DATE OF POOLING
AND SERVICING
AGREEMENT: AS OF SERVICER: FIRST UNION NATIONAL BANK
JUNE 1, 1997
CUT-OFF DATE:
JUNE 11, 1997 SPECIAL SERVICER: LENNAR PARTNERS, INC.
CLOSING DATE:
JUNE 30, 1997 TRUSTEE: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION
DATE:
JULY 20, 1997 CUSIP NO. 22540 AN 8
APPROXIMATE
AGGREGATE CERTIFICATE NO.: ___
NOTIONAL BALANCE
OF THE CLASS A-X
CERTIFICATES
AS OF THE CLOSING DATE:
$1,356,228,736
THIS CLASS A-X CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received or
-----
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets
as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans and (v) the rights of the
Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
------------
is the registered owner of the interest evidenced by this Certificate in the
Class A-X Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 1997 (the "Pooling and
-----------
Servicing Agreement"), among Credit Suisse First Boston Mortgage Securities
- -------------------
Corp. (hereinafter called the "Depositor", which term includes any successor
---------
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions
of the Pooling and Servicing Agreement is set forth hereafter. To the extent
not defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
------------
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Notional Balance of the
Class A-X Certificates. The Certificates are designated as the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 1997-C1 and are issued in eighteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations
of the Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement,
as amended from time to time, to which the Certificateholder by virtue
of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this
Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of interest then
distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this
Certificate will not be entitled to distributions in respect of principal.
Holders of this Certificate may be entitled to Prepayment Premiums and Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-X
Pass-Through Rate. The Class A-X Pass-Through Rate shall be equal to the
Combined Weighted Average Net Mortgage Rate. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the sum of the General Available Distribution
Amount and the Private Loan Available Distribution Amount to be distributed
on the Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in
the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom.
Amounts on deposit in the Certificate Account may be invested in Permitted
Investments. Interest or other net income earned on funds in the Certificate
Account will be paid to the Servicer and withdrawals from the Certificate
Account shall be made from time to time for purposes other than distributions
to Certificateholders, such purposes including reimbursement of certain
expenses incurred with respect to the servicing of the Loans and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-X Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $100,000 initial
Certificate Balance and in integral multiples of $10,000 in excess thereof.
If the Certificate Balance of the Class A-X Certificates does not equal an
integral multiple of $10,000, then a single additional Class A-X Certificate
may be issued in a minimum denomination of authorized initial Certificate
Balance that includes the excess of (i) the initial Certificate Balance of
Class A-X over (ii) the largest integral multiple of $10,000 that does not
exceed such amount.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or to correct any error,
(iii) to change the timing and/or nature of deposits in the Certificate
Account, the Distribution Accounts or the REO Account, provided that (A) the
P&I Advance Date shall not be later than the related Distribution Date, (B)
such change would not adversely affect in any material respect the interests
of any Certificateholder, as evidenced by an opinion of counsel (at the
expense of the party requesting the amendment) and (C) such change would not
result in the downgrading, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency to such effect, (iv) to modify,
eliminate or add to any of its provisions (A) to such extent as shall be
necessary to maintain the qualification of the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize the
risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an opinion of counsel (at the expense of the party requesting
the amendment) to the effect that (1) such action is necessary or desirable
to maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any
material respect the interests of any Certificateholder or (vi) to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the then current ratings assigned to each Class of
Certificates by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
-----------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: _____ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- ------------------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
__________, as its agent.
EXHIBIT A-4
FORM OF FIXED RATE SUBORDINATE CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS (B)(C)(D)
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES
OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
---
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR
(ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION Section 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING
THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i)
OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE
PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND
WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER, THE EXTENSION ADVISER, THE INITIAL PURCHASER OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK-ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
PASS-THROUGH
RATE: ____% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION:
$94,936,000.00 PREPAYMENTS RECEIVED ON OR BEFORE THE CUT-OFF DATE:
$1,356,228,736
DATE OF POOLING
AND SERVICING
AGREEMENT: AS OF
JUNE 1, 1997 SERVICER: FIRST UNION NATIONAL BANK
CUT-OFF DATE:
JUNE 11, 1997
CLOSING DATE:
JUNE 30, 1997 SPECIAL SERVICER: LENNAR PARTNERS, INC.
FIRST DISTRIBUTION
DATE:
JULY 20, 1997 TRUSTEE: THE CHASE MANHATTAN BANK
CERTIFICATE NO.:
APPROXIMATE
AGGREGATE
CERTIFICATE
BALANCE CUSIP NO. 22540A ___
OF THE CLASS
(B)(C)(D)
CERTIFICATES
AS OF THE CLOSING
DATE: $________ CERTIFICATE NO.: __
THIS CLASS (B)(C)(D) CERTIFICATE evidences a beneficial ownership interest in
a trust fund, consisting primarily of (i) a pool of commercial and
multifamily mortgage loans (the "Loans"), all interest and principal received
-----
or receivable on or with respect to the Loans (other than payments of
principal and interest due and payable on the Loans on or before the Cut-off
Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans and (v) the rights of the
Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
------------
is the registered owner of the interest evidenced by this Certificate in the
Class (B)(C)(D) Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 1997 (the "Pooling and
-----------
Servicing Agreement"), among Credit Suisse First Boston Mortgage Securities
- -------------------
Corp. (hereinafter called the "Depositor", which term includes any successor
---------
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions
of the Pooling and Servicing Agreement is set forth hereafter. To the extent
not defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
------------
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class (B)(C)(D) Certificates. The Certificates are designated as the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1997-C1 and are issued in eighteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class
(B)(C)(D) Pass-Through Rate specified above on the Certificate Balance of
this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the sum of the General
Available Distribution Amount and the Private Loan Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of
this Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class (B)(C)(D) Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance and in integral multiples of $1,000 in excess thereof.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or to correct any error,
(iii) to change the timing and/or nature of deposits in the Certificate
Account, the Distribution Accounts or the REO Account, provided that (A) the
P&I Advance Date shall not be later than the related Distribution Date, (B)
such change would not adversely affect in any material respect the interests
of any Certificateholder, as evidenced by an opinion of counsel (at the
expense of the party requesting the amendment) and (C) such change would not
result in the downgrading, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency to such effect, (iv) to modify,
eliminate or add to any of its provisions (A) to such extent as shall be
necessary to maintain the qualification of the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize the
risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an opinion of counsel (at the expense of the party requesting
the amendment) to the effect that (1) such action is necessary or desirable
to maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by
the Pooling and Servicing Agreement continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
-------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS (B)(C)(D) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: _____ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- ------------------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
__________, as its agent.
EXHIBIT A-5
FORM OF ADJUSTABLE RATE SUBORDINATE CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS (E)(F)(G)(H)(I)(J)(K)
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES
OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
---
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
(THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND.
ASSUMING THE COLLATERAL PREPAYS AT 0% CPR AND THE ARD LOANS PREPAY ON THEIR
ACCELERATED REPAYMENT DATE, THIS CERTIFICATE IS ISSUED ON JUNE 30, 1997, WITH
AN INITIAL COUPON RATE OF 7.5%. THIS CERTIFICATE HAS BEEN ISSUED WITH $
---
OF OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE MONTHLY YIELD EXPRESSED
ON AN ANNUAL BASIS IS %, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
-----
INITIAL SHORT ACCRUAL PERIOD IS $ PER $1,000 OF INITIAL PRINCIPAL AMOUNT,
----
COMPUTED ASSUMING THE YIELD IS ACCRUED DURING THE INITIAL PERIOD ON THE BASIS
OF DAILY COMPOUNDING.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR
(ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION Section
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE,
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING
OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT
IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
EXTENSION ADVISER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975
OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
PASS-THROUGH
RATE: Variable APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION:
$ ________ PREPAYMENTS RECEIVED ON OR BEFORE THE CUT-OFF DATE:
$1,356,228,736
DATE OF POOLING AND
SERVICING AGREEMENT:
AS OF
JUNE 1, 1997 SERVICER: FIRST UNION NATIONAL BANK
CUT-OFF DATE:
JUNE 11, 1997
CLOSING DATE:
JUNE 30, 1997 SPECIAL SERVICER: LENNAR PARTNERS, INC.
FIRST DISTRIBUTION
DATE:
JULY 20, 1997 TRUSTEE: THE CHASE MANHATTAN BANK
APPROXIMATE
AGGREGATE CUSIP NO. 22540A __
CERTIFICATE
BALANCE
OF THE CLASS CERTIFICATE NO.: __
(E)(F)(G)(H)(I)(J)(K)
CERTIFICATES
AS OF THE CLOSING
DATE: $ _______
THIS CLASS (E)(F)(G)(H)(I)(J)(K) CERTIFICATE evidences a beneficial ownership
interest in a trust fund, consisting primarily of (i) a pool of commercial
and multifamily mortgage loans (the "Loans"), all interest and principal
-----
received or receivable on or with respect to the Loans (other than payments
of principal and interest due and payable on the Loans on or before the Cut-
off Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans and (v) the rights of the
Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
-----------
is the registered owner of the interest evidenced by this Certificate in the
Class
(E)(F)(G)(H)(I)(J)(K) Certificates issued by the Trust Fund created pursuant
to the Pooling and Servicing Agreement, dated as of June 1, 1997 (the
"Pooling and Servicing Agreement"), among Credit Suisse First Boston Mortgage
-------------------------------
Securities Corp. (hereinafter called the "Depositor", which term includes any
---------
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
------------
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class (E)(F)(G)(H)(I)(J)(K) Certificates. The Certificates are
designated as the Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1997-C1 and are issued
in eighteen Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class
(E)(F)(G)(H)(I)(J)(K) Pass-Through Rate specified in the Pooling and
Servicing Agreement on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount
due to this Certificate's pro rata share of the sum of the General Available
Distribution Amount and the Private Loan Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as
set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class (E)(F)(G)(H)(I)(J)(K) Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000
initial Certificate Balance and in integral multiples of $1,000 in excess
thereof.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein
or to correct any error, (iii) to change the timing and/or nature of deposits
in the Certificate Account, the Distribution Accounts or the REO Account,
provided that (A) the P&I Advance Date shall not be later than the related
Distribution Date, (B) such change would not adversely affect in any material
respect the interests of any Certificateholder, as evidenced by an opinion of
counsel (at the expense of the party requesting the amendment) and (C) such
change would not result in the downgrading, qualification or withdrawal of
the then current ratings assigned to any Class of Certificates by any Rating
Agency, as evidenced by a letter from each Rating Agency to such effect, (iv)
to modify, eliminate or add to any of its provisions (A) to such extent as
shall be necessary to maintain the qualification of the Trust Fund (or either
the Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize
the risk of imposition of any tax on the Trust Fund, provided that the
Trustee has received an opinion of counsel (at the expense of the party
requesting the amendment) to the effect that (1) such action is necessary or
desirable to maintain such qualification or to avoid or minimize such risk
and (2) such action will not adversely affect in any material respect the
interests of any holder of the Certificates or (B) to restrict the transfer
of the Residual Certificates, provided that the Depositor has determined that
the then-current ratings of any Class of the Certificates will not be
downgraded, qualified or withdrawn, as evidenced by a letter from each Rating
Agency to such effect, and that any such amendment will not give rise to a
federal tax with respect to the transfer of the Residual Certificates to a
non-permitted transferee, (v) to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement or any
other change, provided that such action will not adversely affect in any
material respect the interests of any Certificateholder or (vi) to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the then current ratings assigned to each Class of
Certificates by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer,
the Special Servicer, the Depositor, the Trustee or any other specified
person in accordance with such amendment will not result in the imposition of
a tax on the REMIC constituted by the Trust Fund or cause the Trust Fund (or
either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a
REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS (E)(F)(G)(H)(I)(J)(K) CERTIFICATES REFERRED TO
IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: _______ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- ------------------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
__________, as its agent.
EXHIBIT A-6
FORM OF CLASS V-1 CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS V-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH
PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY
BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION Section
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE,
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING
OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT
IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
EXTENSION ADVISOR, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975
OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
PERCENTAGE
INTEREST: _____% SERVICER: FIRST UNION NATIONAL BANK
DATE OF POOLING
AND SERVICING
AGREEMENT: AS OF SPECIAL SERVICER: LENNAR PARTNERS, INC.
JUNE 1, 1997
CUT-OFF DATE:
JUNE 11, 1997 TRUSTEE: THE CHASE MANHATTAN BANK
CLOSING DATE:
JUNE 30, 1997
FIRST DISTRIBUTION
DATE:
JULY 20, 1997 CERTIFICATE NO.: ___
THIS CLASS V-1 CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received or
-----
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets
as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans and (v) the rights of the
Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
--------------------------------------------
is the registered owner of the interest evidenced by this Certificate in the
Class V-1 Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 1997 (the "Pooling and
-----------
Servicing Agreement"), among Credit Suisse First Boston Mortgage Securities
- -------------------
Corp. (hereinafter called the "Depositor", which term includes any successor
---------
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. The Holder of this Certificate is not entitled to
distributions of principal or, except as described herein, interest from the
Trust Fund. A summary of certain of the pertinent provisions of the Pooling
and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive Excess Interest.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the
------------
Class V-1 Certificates that is specified on the face hereof. The
Certificates are designated as the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1997-C1 and are issued in eighteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
The Class V-1 Certificates will represent pro rata undivided
beneficial interests in the portion of the Trust Fund consisting of Excess
Interest, and such portion will be treated as a grantor trust under subpart E
of part I of subchapter J of chapter 1 of subtitle A of the Internal Revenue
Code. Each Holder of this Certificate, by acceptance hereof, agrees to treat
this Certificate in accordance with the preceding sentence for purposes of
federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income and agrees to take no action
inconsistent with the foregoing.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of Excess Interest then distributable, if any, to the Class V-1
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and
the Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in the Certificate Account may be invested in
Permitted Investments. Interest or other net income earned on funds in the
Certificate Account will be paid to the Servicer and withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Loans and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
The Class V-1 Certificates will be issued in fully registered,
certificated form, in Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or to correct any error,
(iii) to change the timing and/or nature of deposits in the Certificate
Account, the Distribution Accounts or the REO Account, provided that (A) the
P&I Advance Date shall not be later than the related Distribution Date, (B)
such change would not adversely affect in any material respect the interests
of any Certificateholder, as evidenced by an opinion of counsel (at the
expense of the party requesting the amendment) and (C) such change would not
result in the downgrading, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency to such effect, (iv) to modify,
eliminate or add to any of its provisions (A) to such extent as shall be
necessary to maintain the qualification of the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize the
risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an opinion of counsel (at the expense of the party requesting
the amendment) to the effect that (1) such action is necessary or desirable
to maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
-------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS V-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- ------------------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
__________, as its agent.
EXHIBIT A-7
FORM OF RESIDUAL CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1, CLASS (R)(LR)
THIS CLASS (R)(LR) CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(A)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY,
AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO
REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE
FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR
(ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION Section 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING
THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i)
OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF
ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND
WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER, THE EXTENSION ADVISER, THE INITIAL PURCHASER OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
PERCENTAGE INTEREST
EVIDENCED BY THIS SERVICER: FIRST UNION NATIONAL BANK
CERTIFICATE: ____%
DATE OF POOLING AND
SERVICING AGREEMENT: SPECIAL SERVICER: LENNAR PARTNERS, INC.
AS OF
JUNE 1, 1997
CUT-OFF DATE:
JUNE 11, 1997 TRUSTEE: THE CHASE MANHATTAN BANK
CLOSING DATE:
JUNE 30, 1997 CERTIFICATE NO.: __
FIRST DISTRIBUTION DATE:
JULY 20, 1997
THIS CLASS (R)(LR) CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received
-----
or receivable on or with respect to the Loans (other than payments of
principal and interest due and payable on the Loans on or before the Cut-off
Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans and (v) the rights of the
Depositor under the Mortgage Loan Purchase Agreement (collectively, the
"Trust Fund"), formed and sold by
----------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT
-------------------------------------------
is the registered owner of the interest evidenced by this Certificate in the
Class (R)(LR) Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 1997 (the "Pooling and
-----------
Servicing Agreement"), among Credit Suisse First Boston Mortgage Securities
- -------------------
Corp. (hereinafter called the "Depositor", which term includes any successor
---------
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions
of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the
------------
Class (R)(LR) Certificates that is specified on the face hereof. The
Certificates are designated as the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1997-C1 and are issued in eighteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Internal Revenue Code of 1986, as
amended. Each transferee of this Certificate, by acceptance hereof, agrees
to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes
imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement,
distribution, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this
Certificate is registered as of the related Record Date. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing
of the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement 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 to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Each Person who has or who acquires any Ownership Interest in a
Class (R)(LR) 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 Section 5.02(d) of the Pooling and Servicing
Agreement to deliver payments to a Person other than such Person. The rights
of each Person acquiring any Ownership Interest in a Class (R)(LR)
Certificate are expressly subject to the following provisions: (A) No
Person holding or acquiring any Ownership Interest in a Class (R)(LR)
Certificate shall be a Disqualified Organization or agent thereof (including
a nominee, middleman or similar person) (an "Agent"), a Plan or a Person
-----
acting on behalf of or investing the assets of a Plan (such Plan or Person,
an "ERISA Prohibited Holder") or a Non-U.S. Person and shall promptly notify
-----------------------
the Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status; (B) In connection with any proposed
Transfer of any Ownership Interest in a Class (R)(LR) Certificate, the
Certificate Registrar shall require delivery to it, and no Transfer of any
Class (R)(LR) Certificate shall be registered until the Certificate Registrar
receives, an affidavit substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit") from the proposed
------------------
Transferee, in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such Transferee is not
a Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person, and that it has reviewed the provisions of Section 5.02(d)
of the Pooling and Servicing Agreement and agrees to be bound by them; (C)
Notwithstanding the delivery of a Transfer Affidavit by a proposed Transferee
under clause (B) above, if the Certificate Registrar has actual knowledge
that the proposed Transferee is a Disqualified Organization or Agent thereof,
an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an Ownership
Interest in a Class (R)(LR) Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in
a Class (R)(LR) Certificate shall agree (1) to require a Transfer Affidavit
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest in such Class (R)(LR) Certificate and (2) not to transfer
its Ownership Interest in such Class (R)(LR) Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to
the Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor
----------
Letter") certifying that, among other things, it has no actual knowledge that
- ------
such prospective Transferee is a Disqualified Organization, an Agent thereof,
an ERISA Prohibited Holder or a Non-U.S. Person.
The Class (R)(LR) Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or to correct any error,
(iii) to change the timing and/or nature of deposits in the Certificate
Account, the Distribution Accounts or the REO Account, provided that (A) the
P&I Advance Date shall not be later than the related Distribution Date, (B)
such change would not adversely affect in any material respect the interests
of any Certificateholder, as evidenced by an opinion of counsel (at the
expense of the party requesting the amendment) and (C) such change would not
result in the downgrading, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency to such effect, (iv) to modify,
eliminate or add to any of its provisions (A) to such extent as shall be
necessary to maintain the qualification of the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) as a REMIC or to avoid or minimize the
risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an opinion of counsel (at the expense of the party requesting
the amendment) to the effect that (1) such action is necessary or desirable
to maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66 2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.25%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), 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 Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed
by the Authenticating Agent, by manual signature, this Certificate shall not
be entitled to any benefit under the Pooling and Servicing Agreement or be
valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
---------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS (R)(LR) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of ___________ Custodian under
survivorship and not as tenants in (Cust)
common
Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any change
whatever.
- ------------------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm
of the New York Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or ____________________
__________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
CSFB97C1 - MORTGAGE LOAN SCHEDULE - PART I (PROPERTIES)
LOAN PROPERTY PROPERTY PROPERTY
NOS NAME ADDRESS CITY STATE ZIP
___ ________ ________ ________ _____ ___
<S> <C> <C> <C> <C> <C>
1 Veterans Blvd. Schwegmann's 3620 Veterans Boulevard Metarie Louisiana 70002
1 Airline Highway Schwegmann's 10057 Airline Highway St Rose Louisiana 70087
1 Lake Oaks Plaza Schwegmann's 6600 Franklin Avenue New Orleans Louisiana 70122
1 Plaza East Shopping Center 6001 Bullard Road New Orleans Louisiana 70126
1 Power Blvd. Schwegmann's 3711 Powers Boulevard Metarie Louisiana 70003
1 Lapalco Schwegmann's 5151 Lapalco Boulevard Marrero Louisiana 70072
1 W. Judge Perez Schwegmann's 8400 W. Judge Perez Drive Chalmette Louisiana 70043
1 West Veterans Schwegmann's 2627 W. Veterans Mem. Highway Kenner Louisiana 70062
1 Sherwood Forest Schwegmann's 5959 S. Sherwood Forest Blvd. Baton Rouge Louisiana 70816
1 West Bank/Westside Plaza 1601 West Bank Expressway Harvey Louisiana 70058
1 Woodland Parkway Schwegmann's 4400 Woodland Parkway Algiers Louisiana 70114
1 Broad Street Schwegmann's 300 Broad Street New Orleans Louisiana 70119
1 Roma Avenue Schwegmann's 1000 Roma ASvenue Hammond Louisiana 70403
1 Old Gentilly Road Schwegmann's 5300 Old Gentilly Road New Orleans Louisiana 70126
1 West Airline Hwy Schwegmann's 8001 West Airline Highway Metarie Louisiana 70003
1 Annuciation St Schwegmann's 1325 Annunciation Street New Orleans Louisiana 70130
2 D & D Building 979 Third Avenue New York New York 10022
3 Pan-Sahara Pavilion 4604-4760 West Sahara Avenue Las Vegas Nevada 89102
3 Pan-Olympia Square SE Pacific Avenue & I-5 Olympia Washington 98501
3 Pan-Maysville Marketplace Kentucky 9 (AA Highway) Maysville Kentucky 41056
3 Pan-Country Club Center NWC Southern Blvd. & Pine Tre Rio Rancho New Mexico 87124
4 Roosevelt Center 1280-1350 Corporate Dr. Westbury New York 11590
5 Prince George's Plaza 3500 West End Highway Hyattsville Maryland 27082
6 Quantum R&D Facility 333 South Street Shrewsbury Massachusetts 01545
6 Quantum Research Facility 1450 Centenial Parkway Louisville Colorado 80027
7 Fortunoff Jewelry & Silver Old Country Road Westbury New York 11590
7 M. Fortunoff Woodbridge 441 Wooodbridge Center Drive Woodbridge Township New Jersey 07095
8 Town & Country Hotel 500 Hotel Circle North San Diego California 92109
9 Bruckner Plaza Buckner Blvd.&White Plains Rd Bronx New York 10451
10 The Paramount Building 1501 Broadway New York New York 10036
11 Summit Bank 750 Walnut Street Cranford New Jersey 07016
12 Las Americas V. Shopping Coral Way and SW 122nd Street Miami Florida 33175
13 Broadway Square 8751 Broadway Blvd. Houston Texas 77061
14 Airlines Parking 7777 & 8325 Merriman Road Romulus Michigan 48174
16 Continental Terrace 2361-81 Rosencrans El Segundo California 90245
16 3601 Aviation 3601 Aviation Manhattan Beach California 90245
17 Oregon City Center NE Quad. of I-205 &99E Oregon City Oregon 97045
17 Sandy Marketplace 36641-36967 SE Highway 26 Sandy Oregon 97055
17 Southgate Shopping Center 10435 SE 82nd Ave. Portland Oregon 97206
18 Tandy Corp Credit Lease 1280-1350 Corporate Drive Westbury New York 11590
19 Radisson Suites 1201 Gulf Blvd. Clearwater Florida 34630
20 Hampshire Hotel 157 W. 47th Street New York New York 10036
21 GF-Baltimore Sheraton 903 Dulaney Valley Road Towson Maryland 21204
22 Fordham Road 300-316 East Fordham Road Bronx New York 10458
23 Cottonwood Creek Mall 1801 Park Highway Wasilla Alaska 99654
24 Sleep Inn Destin 10775 US Highway 98 Destin Florida 32541
24 Super 8 Mission Bay 4540 Mission Bay Drive San Diego California 92109
24 Sleep Inn Tallahassee 1695 Capital Circle NW Tallahassee Florida 32303
24 Super 8 Sikeston 2609 E. Malone Street Sikeston Missouri 63801
24 Super 8 Rock Falls 2100 1st Avenue Rock Falls Illinois 61071
24 Super 8 Poplar Bluff 2831 N. Westwood Blvd. Poplar Bluff Missouri 63901
24 Super 8 Somerset 601 S. Highway 27 Somerset Kentucky 42501
25 Park City 3&4 Apartments 97-07 63rd Road Rego Park, Queens New York 11374
26 Holyoke 480 Hampden St. PO Box 867 Holyoke Massachusetts 01041
27 Foothills Park Place NWC Interstate 10 & Ray Road Phoenix Arizona 85016
28 Brandy-Town & Country Apts. East side of Linden Street Bethlehem Pennsylvania 18017
29 Ford's Colony Country Club One Ford's Colony Drive Williamsburg Virginia 23188
30 422 Business Center 422 Mill Road Oaks Pennsylvania 19456
31 Austin Airport North Courtyard 5660 North IH 35 Austin Texas 78751
32 Bass-Hilltop Shopping Center Hilltop Drive Redding California 96002
32 Bass Vons/Longs Plaza North h Street Lompoc California 93436
32 Bass-Elkhorn Shopping Center Elkhorn Boulevard Sacrmento California 95835
33 173-175 Riverside Drive 173-175 Riverside Drive New York New York 10024
34 Regal Cinemas Multi-plex 525 Marketplace Drive Henrietta New York 14623
35 48 West 48th Street 48 West 48th Street New York New York 10036
36 Ralphs - Olympic Olympic & Barrington Los Angeles California 90035
37 TJ Maxx Plaza 1338-1366 Hooper Ave. Toms River New Jersey 08753
38 Reseda Business Park 6851-6934 Canby Avenue Reseda California 91335
39 Hoilday Inn Express 6401 Branndon Avenue Springfield Virginia 22150
40 Plantation Residence Inn 130 N. University Drive Plantation Florida 33324
41 Carlsbad Plaza 2502-2590 El Camino Real Carlsbad California 92008
42 Ralphs-Victory Victory & Fallbrook Canoga Park California 91307
43 Key West Fairfield Inn 2400 N. Roosevelt Blvd. Key West Florida 33040
44 Meridan Theater Pomeroy Avenue Meridan Connecticut 17828
44 Windham Theater Jilson Square Windham Connecticut 17215
46 Bon-Ton Department Store Mall at Greece Ridge Center Greece New York 14616
47 Kohl's Department Store 1909 Independence Avenue Springfield Missouri 65804
48 Mission Trace I 3333 S. Wadsworth Blvd. Lakewood Colorado 80227
49 Builder's Square 2495 Gulf to Bay Boulevard Clearwater Florida 34625
50 Genus Inc. Building 62 Stanley Tucker Drive Newburyport Massachusetts 01950
51 Gulf Freeway Plaza 10000 Gulf Freeway Houston Texas 77034
51 Katy Freeway Plaza 11901 - 11939 Katy Freeway Houston Texas 77079
51 Loop 610 Center 2562 - 2590 South Loop 610 Houston Texas 77005
51 Plainfield Plaza 9882 - 98 Southwest Freeway Houston Texas 77099
51 Southwest Bellfort S.C. 11200 Southwest Freeway Houston Texas 77031
52 Bon-Ton Department Store Eastview Mall Victor New York 14564
53 Blossom Cove 11801-11889 Starcrest Drive San Antonio Texas 78247
53 Blossom International II 11901-11995 Starcrest Drive San Antonio Texas 78247
54 Delphia-Pathmark 840 Cottman Ave. Philadelphia Pennsylvania 19111
55 Builder's Square 8199 Pearl Road Strongsville Ohio 44134
56 Austin Northwest Residence Inn 3713 Tudor Blvd. Austin Texas 78759
57 Personal Self Storage 4595 Mission Bay Drive San Diego California 92109
58 Washington Park Apartments 418 Marshall Walk Louisville Kentucky 40214
59 2-20 East Fordham Road 2-20 East Fordham Road Bronx New York 10468
60 GF-Richmond Hilton 5501 Eubank Road Sandston Virginia 23150
61 Vernon-Pathmark One Parkmark Plaza Mount Vernon New York 10550
62 Foothills Oaks Shopping Center 1449 East "F" Street Oakdale California 95361
63 Houston Galleria 2500 McCue Street Houston Texas 77056
64 Hyde Park Condominium 707 & 712 U.S. Route 9 Hyde Park New York 19094
64 Linden Lane Apartments 1400 Macdade Boulevard Ridley Pennsylvania 19094
65 Hartz Mountain 1000 Secaucus Road Secaucus New Jersey 08301
66 North Rodeo Drive 428-430 N Rodeo Dr Beverly Hills California 90120
67 Borders Books and Music 5055-5059 South Plaza lane Monclair California 91763
68 Brandy-Northwood Oaks 2519 McMullen Booth Road Clearwater Florida 34621
69 White Sands Mall 3199 White Sands Mall Blvd. Alamogordo New Mexico 88310
70 Holiday Inn Express-Exton 120 N. Pottstown Pike Exton Pennsylvania 19341
71 Best Western Virginia 1101 Atlantic Avenue Virginia Beach Virginia 23451
72 Bon-Ton Department Stores Irondoquoit Mall Irondequoit Twnshp New York 14617
73 Doheny Village Center 34061-34131 Doheny Park Road Dana point California 92629
74 The Village at San Luis Obispo 55 North Broad Street San Luis Obispo California 93405
75 Builder's Square 363 North Naperville Road Bolingbrook Illinois 63126
76 El Camino Center 285 North El Camino Real Encinitas California 92075
77 Townhouses of Plantation 4790 NW 9th Court Plantation Florida 33317
78 Windsong Apartments 2352 Windway Lane Virginia Beach Virginia 23455
79 Austin Northwest Courtyards 9409 Stonelake Blvd. Austin Texas 78759
80 Rosewood Village Shopping Ctr 3080 Marlo Road Santa Rosa California 95403
81 Peppertree Apartments - 2 2701 Longmire College Station Texas 77845
82 750 Walnut 750 Walnut Cranford New Jersey 07016
83 Delchamps Plaza 3046 Indiana Ave. Vicksburg Mississippi 39180
84 Bon-Ton Department Stores Marketplace Mall Henrietta New York 14467
85 Brandy-Providence Plaza 1235 Providence Boulevard Deltona Florida 32725
86 Hawkin-Pathmark 517 Route 72 West Stafford Township New Jersey 08050
87 Baytower Corporate Center 15901 Hawthorne Blvd. Lawndale California 90260
88 Park on Bandera 2011 Bandera Road San Antonio Texas 78228
89 Plaza de la Fiesta I 2661, 2667 E. Florence Huntington Park California 90255
90 Kinnelon Mall 25 Kinnelon Road Kinnelon New Jersey 07405
91 Quail Ridge Center Nogales & La Puente West Covina California 91792
92 The Hamlet Apartments 1319-159th Avenue San Leandro California 94578
93 Soho Properties 93-99 Greene Street New York New York 10012
93 116-118 Wooster 116-118 Wooster New York New York 10012
94 Gat-Rancho Del Oro 805-835 College Blvd Oceanside California 92116
95 Comfort Inn 100 Indian Center Court Kingsport Tennessee 37660
96 Wendland Plaza 1001-1033 Fort Hood Street Killeen Texas 76541
97 GF-Philadelphia Holiday Inn 900 Packer Avenue Philadelphia Pennsylvania 19148
98 GF-North Haven Holiday Inn 201 Washington Avenue New Haven Connecticut 06519
99 Los Verdes 1010 48th Street Phoenix Arizona 85008
100 Plaza Riviera 1611 S. Catalina Avenue Redondo Beach California 90277
101 Pine Cove Apartments 2354 Pine Cove Circle Gainesville Georgia 30504
102 Glastonbury Country Club 239 Country Club Rd. Glastonbury Connecticut 06073
103 Gloversville Arterial Route 30A Gloversville New York 12078
104 Belltowne Apartments 327 Columbus Drive Columbus Ohio 43213
105 Delchamps Plaza 1335 Peterman Drive Alexandria Louisiana 71309
106 Country Club Plaza 4421 Nelson Road Lake Charles Louisiana 70605
107 Woolworth Center 949-959 Southern Blvd. New York New York 10459
108 Gat-Palm Promenade South Palm Avenue San Diego California 92173
109 Choctaw Plaza U.S. Highwy 90 Waveland Mississippi 28045
110 Alexander Plaza 301-435B Highway 96 Franklin Tennessee 39576
111 538 Madison 538 Madison New York New York 10022
112 Park Place Apartments 100 Belle Fontaine Drive Lafayette Louisiana 70506
113 Village Inn 1 Beach Street Narragansett Rhode Island 02882
114 Ocotillo Apartments 1780 W. Missouri Phoenix Arizona 85022
115 Gat- East County Square 13465 Camino Square Lakeside California 92130
116 Hampton Inn-Robinsonville 7500 Commerce Landing Road Robinsonville Mississippi 38664
117 Jefferson Oaks 8155 Jefferson Highway Baton Rouge Louisiana 70809
118 Woodbridge Jewelry Exchange One Woodbridge Center, Rte. 9 Woodbridge New Jersey 07095
119 Seabrook Apartments 6730 Everhart Road Corpus Christi Texas 78413
120 West End Plaza 5900,5910,5930 Greenbelt Road Greenbelt Maryland 20770
121 Dali Travel 1059 W. Ball Road Anaheim California 92802
122 Rustic Ridge Apartments 2029 Calla Lorca Santa Fe New Mexico 87505
123 Two Corporate Place Route 114 Middltown Rhode Island 02840
124 The Willows Apartments 10919 Fondren Road Houston Texas 77096
125 Days Inn (Lake Charles) 1010 N. Martin Luther King Hw Lake Charles Louisiana 70601
126 Orchid 94 Belinda County Parkway Mount Juliet Tennessee 37122
127 Public Storage 10850 Beach Blvd Stanton California 90680
128 Papago Springs Apartments 1819 North 40th Street Phoenix Arizona 85008
129 Inducon Amherst 60-70-80-90 Earhart Drive Williamsville New York 14221
(Amherst)
130 St Augustine Self Storage 5 Willard Drive St Augustine Florida 32086
131 Cabana Park Apts. 2524 Tulip Lane Las Vegas Nevada 89101
132 Brandy-Quincy Plaza Cleveland St. @ U.S. Hwy 90 Quincy Florida 32351
133 Peppertree Apartments - 1 3011-3027 Broadway Fort Meyers Florida 33901
134 Pennytree Apartments 232 S. Macdonald Mesa Arizona 85202
135 Shaker West Apartments 12500-12600 Shaker Blvd. Cleveland Ohio 44120
136 Casa Valencia Apartments 4400 NW 21st Street Lauderhill Florida 33313
137 Holridge Apartments 12440 N. 20th Street Phoenix Arizona 85022
138 Gallery Apartments 315 Guilbeau Road Lafayette Louisiana 70506
139 Stanford Court Apartments 402-430 O'Keefe Street East Palo Alto California 94303
140 Carson Highlands Self Storage 10010 Highway 50 East Carson City Nevada 89702
141 603 6th Avenue 595-603 Ave. of the Americas New York New York 10011
142 Yorktown Apartments 2918 Brandon Avenue Roanoke Virginia 24015
143 1261-67 Forest Avenue 1267 Forest Avenue Staten Island New York 10302
144 Fieldside Apartments 99 Grove St. Groton Connecticut 06340
145 Annhurst Apartments 4600 C Annhurst Drive Belcamp Maryland 21017
146 Shaker North Apartments 12701 Shaker Blvd. Cleveland Ohio 44120
147 Villa Bella Care 325 West Islay Street Santa Barbara California 93101
148 Valley West Plaza 5415 South 4090 West Kearns Utah 84118
149 Gardena Terrace Inn 15902 S. Western Avenue Gardena California 90247
150 Ocean Meadows Golf Course 6925 Whittier Drive Goleta California 93117
151 Best Western-Bremen US Hwy 27 & I-20 Bremen Georgia 30110
152 University Center 2001 Manhattan Avenue East Palo Alto California 94303
153 Winkler Villa Apartments 123 Winkler Road Houston Texas 77087
154 Orange Sussex 3000 MacArthur Street Pinehurst Texas 77630
155 Whispering Oaks Apartments 550 Eraste Landry Road Lafayette Louisiana 70501
156 Stone Crest Plaza 3460,62, 64 Murphy Canyon Roa San Diego California 92100
157 Twin Oaks Apartments 2275, 2278 & 2315 Central Ave Fort Myers Florida 33901
158 Fe L. Higgins 67 E. Barnett Ave. Ventura California 93001
159 Pecan Shadows Apartments 480 West Parker Road Houston Texas 77091
160 Granada Terrace Apartments 1301 Avenue A South Houston Texas 77587
161 Oakdale Apartments 2302 N. 27th Street Phoenix Arizona 85008
162 Croix Apartments 1901 Linhart Ave. Fort Myers Florida 33901
163 Hyatt Aruba Juan Orausquin Blvd. #85 Palm Beach Aruba 33480
TOTAL
</TABLE>
(Table continued...)
<TABLE>
<CAPTION>
CUT-OFF
LOAN PROPERTY PROPERTY PRINCIPAL
NOS TYPE TYPE BALANCE
____ ________ ________ _________
<S> <C> <C> <C>
1 Retail Anchored 8,799,274
1 Warehouse/Industr 8,019,278
1 Retail Anchored 7,424,824
1 Retail Anchored 7,209,901
1 Retail Single Tenant 5,457,262
1 Retail Single Tenant 5,125,453
1 Retail Single Tenant 4,663,248
1 Retail Single Tenant 4,362,599
1 Retail Single Tenant 3,781,465
1 Retail Anchored 2,956,410
1 Retail Single Tenant 2,354,491
1 Retail Single Tenant 2,000,733
1 Retail Single Tenant 1,773,981
1 Retail Single Tenant 1,747,523
1 Retail Single Tenant 1,604,083
1 Retail Single Tenant 778,340
2 Office 62,934,415
3 Retail Anchored 31,195,854
3 Retail Anchored 14,152,752
3 Retail Anchored 5,382,033
3 Retail Anchored 3,289,020
4 Retail Anchored 49,761,271
5 Retail Anchored 44,000,000
6 Net Lease 25,979,020
6 Net Lease 15,587,412
7 Net Lease 20,554,918
7 Net Lease 20,554,918
8 Hospitality Full Service 39,000,000
9 Retail Anchored 38,869,224
10 Office 37,773,212
11 Net Lease 29,347,770
12 Retail Anchored 26,680,721
13 Multifamily 25,650,756
14 Other Parking Lot 22,143,035
16 Office 8,723,522
16 Office 8,723,522
17 Retail Anchored 9,962,194
17 Retail Anchored 4,403,290
17 Retail Anchored 3,068,356
18 Net Lease 15,172,330
19 Hospitality Full Service 14,678,879
20 Hospitality Limited Service 14,092,026
21 Hospitality Full Service 13,941,468
22 Retail Anchored 13,245,330
23 Retail Anchored 13,225,636
24 Hospitality Limited Service 2,827,708
24 Hospitality Limited Service 2,238,675
24 Hospitality Limited Service 2,221,796
24 Hospitality Limited Service 1,829,208
24 Hospitality Limited Service 1,413,504
24 Hospitality Limited Service 1,372,828
24 Hospitality Limited Service 1,062,839
25 Multifamily Coop 12,955,801
26 Retail Anchored 12,460,860
27 Retail Anchored 12,300,000
28 Multifamily 11,696,489
29 Other Golf Course 10,933,966
30 Warehouse/Industr 10,400,000
31 Hospitality Limited Service 10,000,000
32 Retail Anchored 4,737,698
32 Retail Anchored 2,812,697
32 Retail Anchored 2,423,706
33 Multifamily Coop 9,799,686
34 Net Lease 9,473,684
35 Office 9,272,766
36 Retail Single Tenant 9,187,234
37 Retail Anchored 9,142,784
38 Warehouse/Industr 8,710,000
39 Hospitality Limited Service 8,500,000
40 Hospitality Limited Service 8,400,000
41 Retail Anchored 8,200,000
42 Retail Single 8,088,761
43 Hospitality Limited Service 7,500,000
44 Net Lease 3,601,470
44 Net Lease 3,601,470
46 Net Lease 7,136,023
47 Net Lease 7,096,326
48 Mixed Use 6,900,000
49 Retail Single Service 6,828,592
50 Office R & D 6,528,513
51 Retail Unanchored 1,302,614
51 Retail Unanchored 1,302,614
51 Retail Unanchored 1,302,614
51 Retail Unanchored 1,302,614
51 Retail Unanchored 1,302,614
52 Net Lease 6,481,575
53 Office 3,041,443
53 Office 3,041,443
54 Retail Single Service 6,051,696
55 Retail Single Service 6,031,408
56 Hospitality Limited Service 6,000,000
57 Other Self-Storage 5,997,918
58 Multifamily 5,863,070
59 Retail Unanchored 5,746,743
60 Hospitality Full Service 5,676,169
61 Retail Single Tenant 5,659,824
62 Retail Anchored 5,650,000
63 Hospitality Limited Service 5,600,000
64 Multifamily 3,198,267
64 Multifamily 2,198,809
65 Warehouse/Industr 5,390,704
66 Retail Unanchored 5,380,867
67 Net Lease 5,138,454
68 Retail Anchored 5,106,985
69 Retail Anchored 5,084,588
70 Hospitality Limited Service 5,049,000
71 Hospitality Limited Service 5,033,013
72 Net Lease 5,002,685
73 Retail Anchored 5,000,000
74 Multifamily 4,967,043
75 Retail Single Service 4,830,000
76 Office 4,750,000
77 Multifamily 4,693,572
78 Multifamily 4,565,037
79 Hospitality Limited Service 4,500,000
80 Retail Anchored 4,486,168
81 Multifamily 4,465,492
82 Office 4,457,716
83 Retail Anchored 4,416,746
84 Net Lease 4,373,786
85 Retail Anchored 4,309,019
86 Retail Single Service 4,265,950
87 Office 4,217,454
88 Multifamily 4,130,166
89 Retail Unanchored 4,100,000
90 Retail Anchored 4,050,000
91 Retail Anchored 3,989,441
92 Multifamily 3,964,039
93 Mixed Use 1,975,000
93 Mixed Use 1,975,000
94 Retail Anchored 3,888,962
95 Hospitality Limited Service 3,750,000
96 Retail Anchored 3,601,895
97 Hospitality Full Service 3,485,367
98 Hospitality Full Service 3,485,367
99 Multifamily 3,440,281
100 Office 3,371,617
101 Multifamily 3,277,316
102 Other Golf Course 3,170,625
103 Retail Anchored 3,132,822
104 Multifamily 3,039,492
105 Retail Anchored 3,028,169
106 Retail Anchored 3,004,240
107 Retail Anchored 2,994,904
108 Retail Anchored 2,991,509
109 Retail Anchored 2,951,288
110 Retail Anchored 2,933,905
111 Office 2,918,125
112 Multifamily 2,836,709
113 Hospitality Full Service 2,800,000
114 Multifamily 2,746,972
115 Retail Anchored 2,732,245
116 Hospitality Limited Service 2,600,000
117 Multifamily 2,510,761
118 Retail Unanchored 2,497,342
119 Multifamily 2,444,687
120 Retail Anchored 2,382,985
121 Hospitality Limited Service 2,191,532
122 Multifamily 2,189,530
123 Office 2,184,544
124 Multifamily 2,168,678
125 Hospitality Limited Service 2,022,804
126 Warehouse/Industr 1,986,894
127 Other Self-Storage 1,974,158
128 Multifamily 1,876,226
129 Warehouse/Industr 1,871,873
130 Other Self-Storage 1,800,000
131 Multifamily 1,769,378
132 Retail Anchored 1,752,204
133 Multifamily 1,741,491
134 Multifamily 1,653,860
135 Multifamily 1,623,199
136 Multifamily 1,568,692
137 Multifamily 1,537,689
138 Multifamily 1,531,562
139 Multifamily 1,515,306
140 Other Self-Storage 1,499,128
141 Mixed Use 1,497,119
142 Multifamily 1,468,729
143 Retail Anchored 1,451,362
144 Multifamily 1,420,395
145 Multifamily 1,403,583
146 Multifamily 1,359,951
147 Health Care Assisted Living 1,311,750
148 Retail Unanchored 1,303,298
149 Hospitality Limited Service 1,267,343
150 Other Golf Course 1,244,488
151 Hospitality Limited Service 1,203,514
152 Multifamily 1,186,782
153 Multifamily 1,100,019
154 Multifamily 998,080
155 Multifamily 992,007
156 Retail Anchored 957,283
157 Multifamily 894,267
158 Health Care Assisted Living 847,707
159 Multifamily 803,659
160 Multifamily 792,601
161 Multifamily 788,219
162 Multifamily 777,839
163 Hospitality Full Service 54,456,214
1,356,228,736
</ TABLE>
CSFB97C1 - MORTGAGE SCHEDULE - PART II (LOANS)
</TABLE>
<TABLE>
<CAPTION>
Orig. Rem
Net Original Cut-off Term Term Stated Antic Orig
Loan Property Mortgage Mortgage Principal Principal Stated Stated Maturity Repay Amort
Nos Name Rate Rate Balance Balance Maturity Maturity Date Date Term
--- -------- -------- -------- --------- --------- -------- -------- -------- ------ -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 Schwegmann-Summary 9.03000 8.9000 68,198,000 68,058,865 307 304 10/01/22 03/01/07 307
2 D & D Building 10.50000 10.4500 63,500,000 62,934,415 300 292 10/01/21 10/01/06 300
3 Pan-Summary 8.17000 8.1200 54,200,000 54,019,659 300 295 01/01/22 01/01/07 360
4 Roosevelt Center 8.63000 8.5800 49,808,300 49,761,271 360 357 03/01/27 03/01/07 360
5 Prince George's Plaza 8.7000 8.6500 44,000,000 44,000,000 360 360 06/01/27 06/01/07 360
6 Quantum-Summary 9.19610 9.1461 42,105,263 41,566,432 120 112 10/01/06 / / 240
7 Fortunoff-Summary 9.04000 8.9900 41,666,668 41,109,836 180 175 01/01/12 / / 180
8 Town & Country Hotel 9.44000 9.3900 39,000,000 39,000,000 300 300 06/01/22 06/01/07 300
9 Bruckner Plaza 8.98000 8.9300 39,000,000 38,869,224 360 354 12/01/26 06/01/14 360
10 The Paramount Building 9.47000 9.4200 38,000,000 37,773,212 301 293 11/10/21 10/10/06 300
11 Summit Bank 7.61400 7.5640 29,473,680 29,347,770 245 239 05/31/17 / / 240
12 Las Americas V. Shopping 8.89000 8.8400 26,750,000 26,680,721 360 355 01/01/27 01/01/07 360
13 Broadway Square 9.25000 9.1200 25,740,000 25,650,756 120 112 10/01/06 / / 360
14 Airlines Parking 9.80500 9.6350 22,290,000 22,143,035 240 235 01/01/17 01/01/07 240
16 Continental Develop-Summary 8.22000 8.0950 17,500,000 17,447,044 360 355 01/01/27 01/01/07 360
17 Portland-Summary 8.73000 8.6800 17,500,000 17,433,841 240 236 02/01/17 02/01/07 300
18 Tandy Corp Credit Lease 8.58000 8.5300 15,191,690 15,172,330 300 298 04/01/22 / / 300
19 Radisson Suites 9.88000 9.7500 14,784,669 14,678,879 300 291 09/01/21 09/01/06 300
20 Hampshire Hotel 9.55000 9.5000 14,120,000 14,092,026 264 262 04/01/19 04/01/07 260
21 GF-Baltimore Sheraton 9.48000 9.4300 14,000,000 13,941,468 300 295 01/01/22 01/01/07 300
22 Fordham Road 9.22000 9.1700 13,300,000 13,245,330 84 79 01/01/04 / / 300
23 Cottonwood Creek Mall 9.56850 9.5185 13,252,708 13,225,636 293 290 08/01/21 08/01/06 293
24 Crosshost-Summary 9.46000 9.4100 13,000,000 12,966,558 240 238 04/01/17 04/01/07 240
25 Park City 3&4 Apartments 8.00000 7.8700 13,000,000 12,955,801 180 175 01/01/12 / / 360
26 Holyoke 8.40000 8.3500 12,500,000 12,460,860 360 355 01/10/27 01/10/07 360
27 Foothills Park Place 8.58000 8.5300 12,300,000 12,300,000 360 360 06/01/27 06/01/07 360
28 Brandy-Town & Country Apts. 8.47000 8.4200 11,730,000 11,696,489 360 355 01/01/27 01/01/04 360
29 Ford's Colony Country Club 10.84500 10.3950 11,000,000 10,933,966 240 235 01/01/17 / / 240
30 422 Business Center 9.13000 9.0800 10,400,000 10,400,000 300 300 06/01/22 06/01/07 300
31 Austin Airport North Courtyard 8.71000 8.6600 10,000,000 10,000,000 300 300 06/01/22 06/01/07 300
32 Bass-Summary 8.89000 8.8400 10,000,000 9,974,101 360 355 01/01/27 01/01/04 360
33 173-175 Riverside Drive 7.87000 7.4500 9,800,000 9,799,686 120 108 06/01/06 / / 1,200
34 Regal Cinemas Multi-plex 8.94410 8.8941 9,473,684 9,473,684 297 297 03/01/22 06/01/17 297
35 48 West 48th Street 9.26000 9.2100 9,370,000 9,272,766 120 113 11/01/06 / / 240
36 Ralphs - Olympic 8.42500 8.3750 9,200,000 9,187,234 358 355 01/01/27 03/01/07 360
37 TJ Maxx Plaza 8.86000 8.8100 9,150,864 9,142,784 360 358 04/01/27 04/01/07 360
38 Reseda Business Park 8.48000 8.4300 8,710,000 8,710,000 360 360 06/01/27 07/01/07 360
39 Hoilday Inn Express 9.21000 9.1600 8,500,000 8,500,000 300 300 06/11/22 06/11/07 300
40 Plantation Residence Inn 8.81000 8.7600 8,400,000 8,400,000 300 300 06/01/22 06/01/07 300
41 Carlsbad Plaza 8.70000 8.6500 8,200,000 8,200,000 360 360 06/01/27 06/01/09 360
42 Ralphs-Victory 8.42500 8.3750 8,100,000 8,088,761 358 355 01/01/27 03/01/07 360
43 Key West Fairfield Inn 8.71000 8.6600 7,500,000 7,500,000 300 300 06/01/22 06/01/07 300
44 Hoyt-Summary 9.15130 9.1013 7,427,978 7,202,940 135 127 01/01/08 / / 135
46 Bon-Ton Department Store 9.62100 9.5710 7,262,000 7,136,023 240 228 06/01/16 / / 240
47 Kohl's Department Store 8.19150 8.1415 7,101,039 7,096,326 297 295 01/01/22 / / 297
48 Mission Trace I 8.72000 8.6700 6,900,000 6,900,000 360 360 06/01/27 06/01/07 360
49 Builder's Square 9.15000 9.1000 6,828,592 6,828,592 360 360 06/01/27 06/01/07 360
50 Genus Inc. Building 9.05000 9.0000 6,623,019 6,528,513 193 187 01/01/13 / / 192
51 Zinn Retail-Summary 9.21000 9.1600 6,540,000 6,513,068 300 295 01/01/22 01/01/07 300
52 Bon-Ton Department Store 9.62100 9.5710 6,596,000 6,481,575 240 228 06/01/16 / / 240
53 Blossom-Summary 9.08000 9.0300 6,082,886 6,082,886 300 300 06/01/22 06/01/04 300
54 Delphia-Pathmark 9.98000 9.9300 6,100,000 6,051,696 300 291 09/01/21 09/01/06 300
55 Builder's Square 9.15000 9.1000 6,031,408 6,031,408 360 360 06/01/27 06/01/07 360
56 Austin Northwest Residence Inn 8.81000 8.7600 6,000,000 6,000,000 300 300 06/01/22 06/01/07 300
57 Personal Self Storage 8.6500 8.6000 6,000,000 5,997,918 360 359 05/01/27 05/01/04 360
58 Washington Park Apartments 8.67500 8.6250 5,925,500 5,863,070 120 107 05/01/06 / / 324
59 2-20 East Fordham Road 9.44000 9.3900 5,750,000 5,746,743 120 119 05/01/07 / / 300
60 GF-Richmond Hilton 9.48000 9.4300 5,700,000 5,676,169 300 295 01/01/22 01/01/07 300
61 Vernon-Pathmark 9.98000 9.9300 5,705,000 5,659,824 300 291 09/01/21 09/01/06 300
62 Foothills Oaks Shopping Ctr. 8.94000 8.8900 5,650,000 5,650,000 360 360 06/01/27 06/01/07 360
63 Houston Galleria 8.71000 8.6600 5,600,000 5,600,000 300 300 06/01/22 06/01/07 300
64 Cimmering-Summary 9.59000 9.5400 5,400,000 5,397,076 300 299 05/01/22 05/01/07 300
65 Hartz Mountain 9.25000 9.2000 5,700,000 5,390,704 84 51 09/01/01 / / 240
66 North Rodeo Drive 9.12500 8.9050 5,400,000 5,380,867 300 296 02/01/22 02/01/07 300
67 Borders Books and Music 9.26650 9.2165 5,153,846 5,138,454 237 235 01/01/17 / / 237
68 Brandy-Northwood Oaks 8.97000 8.9200 5,120,000 5,106,985 360 355 01/01/27 01/01/07 360
69 White Sands Mall 9.35000 9.3000 5,120,000 5,084,588 120 112 10/01/06 / / 300
70 Holiday Inn Express-Exton 9.51000 9.4600 5,049,000 5,049,000 300 300 06/01/22 06/01/04 300
71 Best Western Virginia 9.94000 9.8900 5,065,800 5,033,013 240 235 01/01/17 01/01/07 240
72 Bon-Ton Department Stores 9.62100 9.5710 5,091,000 5,002,685 240 228 06/01/16 / / 240
73 Doheny Village Center 9.22000 9.1700 5,000,000 5,000,000 360 360 06/01/27 06/01/07 360
74 The Village at San Luis Obispo 9.00000 8.7000 5,000,000 4,967,043 120 113 11/01/06 / / 300
75 Builder's Square 9.15000 9.1000 4,830,000 4,830,000 360 360 06/01/27 06/01/07 360
76 El Camino Center 8.80000 8.7500 4,750,000 4,750,000 300 300 06/01/22 06/01/07 300
77 Townhouses of Plantation 9.13000 9.0800 4,750,000 4,693,572 120 107 05/01/06 / / 300
78 Windsong Apartments 9.95000 9.7000 4,700,000 4,565,037 300 267 09/01/19 / / 300
79 Austin Northwest Courtyards 8.81000 8.7600 4,500,000 4,500,000 300 300 06/01/22 06/01/07 300
80 Rosewood Village Shopping Ctr. 8.52000 8.4700 4,500,000 4,486,168 300 295 01/01/22 01/01/07 360
81 Peppertree Apartments - 2 8.98000 8.9300 4,500,000 4,465,492 84 76 10/01/03 / / 332
82 750 Walnut 8.79000 8.7400 4,500,000 4,457,716 120 114 12/01/06 / / 240
83 Delchamps Plaza 8.87000 8.8200 4,416,746 4,416,746 360 360 06/01/27 06/01/07 360
84 Bon-Ton Department Store 9.62100 9.5710 4,451,000 4,373,786 240 228 06/01/16 / / 240
85 Brandy-Providence Plaza 8.97000 8.9200 4,320,000 4,309,019 360 355 01/01/27 01/01/07 360
86 Hawkin-Pathmark 9.98000 9.9300 4,300,000 4,265,950 300 291 09/01/21 09/01/06 300
87 Baytower Corporate Center 9.68000 9.6300 4,256,250 4,217,454 120 109 07/01/06 / / 300
88 Park on Bandera 9.10000 9.0500 4,158,000 4,130,166 121 109 07/01/06 / / 360
89 Plaza de la Fiesta I 9.45000 9.4000 4,100,000 4,100,000 360 360 06/01/27 06/01/07 360
90 Kinnelon Mall 8.83000 8.7800 4,050,000 4,050,000 360 360 06/01/27 06/01/07 360
91 Quail Ridge Center 8.81000 8.7600 4,000,000 3,989,441 360 355 01/01/27 01/01/07 360
92 The Hamlet Apartments 8.44000 8.3100 4,000,000 3,964,039 120 106 04/01/06 / / 360
93 Soho-Summary 9.69000 9.6400 3,950,000 3,950,000 120 112 10/01/06 / / 300
94 Gat-Rancho Del Oro 8.90000 8.8500 3,900,000 3,888,962 84 79 01/01/04 / / 360
95 Comfort Inn 9.78000 9.7300 3,750,000 3,750,000 300 300 06/01/22 06/01/07 300
96 Wendland Plaza 8.91000 8.8600 3,601,895 3,601,895 360 360 06/01/27 06/01/07 360
97 GF-Philadelphia Holiday Inn 9.48000 9.4300 3,500,000 3,485,367 300 295 01/01/22 01/01/07 300
98 GF-North Haven Holiday Inn 9.48000 9.4300 3,500,000 3,485,367 300 295 01/01/22 01/01/07 300
99 Los Verdes 8.53000 8.3550 3,450,000 3,440,281 360 355 01/01/27 01/01/07 360
100 Plaza Riviera 9.43000 9.3800 3,400,000 3,371,617 120 114 12/01/06 / / 300
101 Pine Cove Apartments 8.97000 8.7950 3,300,000 3,277,316 120 108 06/01/06 / / 360
102 Glastonbury Country Club 11.30000 10.8500 3,200,000 3,170,625 239 231 09/01/16 / / 240
103 Gloversville 8.92000 8.8700 3,200,000 3,132,822 120 114 12/01/06 / / 156
104 Belltowne Apartments 8.72000 8.6700 3,112,000 3,039,492 120 97 07/01/05 / / 300
105 Delchamps Plaza 8.87000 8.8200 3,028,169 3,028,169 360 360 06/01/27 06/01/07 360
106 Country Club Plaza 8.87000 8.8200 3,004,240 3,004,240 360 360 06/01/27 06/01/07 360
107 Woolworth Center 10.05000 10.0000 3,000,000 2,994,904 300 298 04/01/22 04/01/07 270
108 Gat-Palm Promenade 8.90000 8.8500 3,000,000 2,991,509 84 79 01/01/04 / / 360
109 Choctaw Plaza 8.91000 8.8600 2,951,288 2,951,288 360 360 06/01/27 06/01/07 360
110 Alexander Plaz 8.91000 8.8600 2,933,905 2,933,905 360 360 06/01/27 06/01/07 360
111 538 Madison 9.27000 9.2200 2,920,400 2,918,125 360 358 04/01/27 04/01/07 360
112 Park Place Apartments 9.10000 8.9500 2,852,500 2,836,709 120 110 08/01/06 / / 360
113 Village Inn 9.94000 9.8900 2,800,000 2,800,000 240 240 06/01/17 06/01/07 240
114 Ocotillo Apartments 8.20000 7.9750 2,779,130 2,746,972 120 103 01/01/06 / / 360
115 Gat-East County Square 8.90000 8.8500 2,740,000 2,732,245 84 79 01/01/04 / / 360
116 Hampton Inn-Robinsonvile 9.31000 9.2600 2,600,000 2,600,000 240 240 06/01/17 06/01/07 240
117 Jefferson Oaks 9.67000 9.4200 2,617,000 2,510,761 300 265 07/01/19 / / 300
118 Woodbridge Jewelry Exchange 9.88000 9.8300 2,500,000 2,497,342 120 119 05/01/07 / / 240
119 Seabrook Apartments 9.05000 9.0000 2,500,000 2,444,687 120 97 07/01/05 / / 300
120 West End Plaza 9.20000 9.1500 2,400,000 2,382,985 120 112 10/01/06 / / 300
121 Dali Travel 9.25000 9.2000 2,250,000 2,191,532 120 103 01/01/06 / / 240
122 Rustic Ridge Apartments 9.25000 9.2000 2,200,000 2,189,530 84 77 11/01/03 / / 330
123 Two Corporate Place 9.99000 9.9400 2,200,000 2,184,544 120 111 09/01/06 / / 300
124 The Willows Apartments 8.79000 8.6150 2,200,000 2,168,678 120 97 07/01/05 / / 360
125 Days Inn (Lake Charles) 10.13000 10.0800 2,024,865 2,022,804 240 239 05/01/17 05/01/07 240
126 Orchid 9.85000 9.8000 2,000,000 1,986,894 120 115 01/01/07 / / 240
127 Public Storage 9.28000 9.2300 1,981,000 1,974,158 300 296 02/01/22 02/01/04 300
128 Papago Springs Apartments 8.68000 8.4750 1,900,000 1,876,226 119 99 09/01/05 / / 360
129 Inducon Amherst 8.62000 8.5700 1,875,000 1,871,873 299 297 03/18/22 03/18/04 300
130 St Augustine Self Storage 9.69000 9.6400 1,800,000 1,800,000 300 300 06/01/22 05/01/04 300
131 Cabana Park Apts. 8.25000 8.0000 1,800,000 1,769,378 120 104 02/01/06 / / 300
132 Brandy-Quincy Plaza 8.67000 8.6200 1,757,000 1,752,204 360 355 01/01/27 01/01/07 360
133 Peppertree Apartments - 1 8.17000 8.1200 1,762,000 1,741,491 120 103 01/01/06 / / 360
134 Pennytree Apartments 8.52500 8.2250 1,672,000 1,653,860 120 103 01/01/06 / / 360
135 Shaker West Apartments 9.75000 9.7000 1,671,000 1,623,199 300 268 10/01/19 / / 300
136 Casa Valencia Apartments 8.87000 8.8200 1,600,000 1,568,692 120 100 10/01/05 / / 300
137 Holridge Apartments 8.67000 8.4950 1,550,000 1,537,689 84 71 05/01/03 / / 360
138 Gallery Apartments 9.15000 8.9500 1,540,000 1,531,562 120 110 08/01/06 / / 360
139 Stanford Court Apartments 8.25000 8.0400 1,533,981 1,515,306 120 102 12/01/05 / / 340
140 Carson Highlands Self Storage 9.35000 9.3000 1,500,000 1,499,128 300 299 05/01/22 05/01/07 300
141 603 6th Avenue 9.56000 9.5100 1,500,000 1,497,119 84 81 03/01/04 / / 300
142 Yorktown Apartments 8.47000 8.2950 1,490,000 1,468,729 84 70 04/01/03 / / 300
143 1261-67 Forest Avenue 10.30000 10.2500 1,480,000 1,451,362 120 112 10/01/06 / / 180
144 Fieldside Apartments 8.60000 8.5500 1,450,000 1,420,395 120 100 10/01/05 / / 300
145 Annhurst Apartments 8.52000 8.4700 1,430,000 1,403,583 120 102 12/01/05 / / 300
146 Shaker North Apartments 9.75000 9.7000 1,400,000 1,359,951 300 268 10/01/19 / / 300
147 Villa Bella Care 9.60000 9.3000 1,350,000 1,311,750 240 221 11/01/15 / / 240
148 Valley West Plaza 9.61000 9.5600 1,304,000 1,303,298 300 299 05/01/22 04/01/07 300
149 Gardena Terrace Inn 9.50000 9.4500 1,296,221 1,267,343 120 105 03/01/06 / / 240
150 Ocean Meadows Golf Course 11.46000 11.0100 1,250,000 1,244,488 240 236 02/01/17 / / 240
151 Best Western-Bremen 10.50000 10.4500 1,225,000 1,203,514 241 227 05/15/16 05/15/06 240
152 University Center 8.12500 7.8950 1,200,000 1,186,782 120 104 02/01/06 / / 360
153 Winkler Villa Apartments 8.45000 8.4000 1,119,700 1,100,019 120 103 01/01/06 / / 300
154 Orange Sussex 8.10000 7.9250 1,010,000 998,080 120 103 01/01/06 / / 360
155 Whispering Oaks Apartments 9.12500 8.9500 997,500 992,007 120 110 08/01/06 / / 360
156 Stone Crest Plaza 8.90000 8.8500 960,000 957,283 84 79 01/01/04 / / 360
157 Twin Oaks Apartments 8.17000 8.1200 911,000 894,267 120 103 01/01/06 / / 300
158 Fe L. Higgins 10.00000 9.9500 858,735 847,707 85 69 03/01/03 / / 300
159 Pecan Shadows Apartments 8.51000 8.4600 817,900 803,659 120 103 01/01/06 / / 300
160 Granada Terrace Apartments 8.80000 8.7500 862,900 792,601 120 103 01/01/06 / / 132
161 Oakdale Apartments 9.48000 9.1800 795,000 788,219 120 110 08/01/06 / / 300
162 Croix Apartments 8.17000 8.1200 787,000 777,839 120 103 01/01/06 / / 360
163 Hyatt Aruba 10.07000 9.7700 55,000,000 54,456,21 240 232 10/10/16 10/10/11 240
TOTAL 1,356,228,736
<TABLE/>
</TABLE>
<TABLE>
<CAPTION>
Table Cont.
Orig. Rem
Rem Cut-Off
Loan Amort Monthly Orig Cut-Off Int
Nos Term Payment Value LTV Calc
---- ----- ------- ----- ------- ----
<S> <C> <C> <C> <C> <C>
1 304 570,617.38 95,575,000 71 ACT360
2 292 599,555.38 85,000,000 74
3 355 404,142.28 76,000,000 71 ACT360
4 357 387,581.06 93,200,000 53 ACT360
5 360 344,578.10 67,500,000 65 ACT360
6 232 388,237.44 52,800,000 0
7 175 423,603.12 55,100,000 0
8 300 339,116.50 67,800,000 58 ACT360
9 354 313,241.75 58,200,000 67 ACT360
10 292 331,212.62 61,000,000 62 ACT360
11 240 237,019.56 31,000,000 0
12 355 213,122.73 42,440,000 63 ACT360
13 352 211,756.65 33,000,000 78 ACT360
14 235 212,231.50 37,650,000 59 ACT360
16 355 131,102.76 27,500,000 63 ACT360
17 296 143,637.42 24,450,000 71 ACT360
18 298 123,147.76 93,200,000 0 ACT360
19 291 133,099.76 21,200,000 69
20 262 128,166.67 22,500,000 63 ACT360
21 295 122,122.95 27,500,000 51
22 295 113,623.59 19,100,000 69 ACT360
23 290 117,100.94 15,500,000 85
24 238 120,837.64 17,855,000 73 ACT360
25 355 95,389.39 46,200,000 28
26 355 95,229.71 16,900,000 74 ACT360
27 360 95,274.61 18,500,000 66 ACT360
28 355 89,945.00 15,400,000 76 ACT360
29 235 112,382.67 15,720,000 70 ACT360
30 300 88,204.11 16,300,000 64 ACT360
31 300 81,942.77 15,500,000 65 ACT360
32 355 79,672.05 13,685,000 73 ACT360
33 1188 64,296.83 124,800,000 8
34 297 74,318.42 10,700,000 0 ACT360
35 233 85,877.46 16,000,000 58
36 357 70,251.58 14,500,000 63 ACT360
37 358 72,701.10 12,300,000 74 ACT360
38 360 66,849.25 11,900,000 73 ACT360
39 300 72,557.99 11,960,039 71 ACT360
40 300 69,402.82 13,200,000 64 ACT360
41 360 64,216.83 11,900,000 69 ACT360
42 357 61,852.00 11,000,000 74 ACT360
43 300 61,457.08 11,500,000 65 ACT360
44 127 88,312.19 9,600,000 0
46 228 68,266.04 7,700,000 0
47 295 55,885.23 7,400.000 0
48 360 54,134.55 10,100,000 68 ACT360
49 360 55,683.00 10,900,000 63 ACT360
50 186 65,405.17 8,100,000 81
51 295 55,826.97 9,470,000 69 ACT360
52 228 62,005.49 6,800,000 0
53 300 51,381.00 9,100,000 67 ACT360
54 291 55,344.77 8,300,000 73
55 360 49,182.45 9,500,000 63 ACT360
56 300 50,475.08 9,100,000 66 ACT360
57 359 46,774.15 7,720,000 78 ACT360
58 311 47,433.93 8,600,000 68
59 299 49,997.95 9,500,000 60 ACT360
60 295 49,721.49 9,500,000 60
61 291 51,760.97 8,100,000 70
62 360 45,217.47 7,800,000 72 ACT360
63 300 45,887.95 9,100,000 62 ACT360
64 299 47,517.89 8,610,000 63 ACT360
65 207 52,204.41 7,650,000 70
66 296 45,779.73 9,000,000 60 ACT360
67 235 47,465.28 6,300,000 0
68 355 41,087.00 6,100,000 80 ACT360
69 292 44,200.57 6,300,000 81
70 300 44,148.05 6,800,000 74 ACT360
71 235 48,684.86 8,700,000 58 ACT360
72 228 47,857.78 5,400,000 0
73 360 41,025.12 7,100,000 70 ACT360
74 293 41,959.82 8,100,000 61
75 360 39,385.70 7,600,000 63 ACT360
76 300 39,213.31 7,150,000 66 ACT360
77 287 40,285.53 6,650,000 71
78 267 42,543.39 7,500,000 61
79 300 37,856.33 7,000,000 64 ACT360
80 355 34,664.91 6,000,000 75 ACT360
81 324 36,757.32 6,520,000 68
82 234 39,881.91 12,000,000 37
83 360 35,125.75 5,800,000 76 ACT360
84 228 41,841.04 5,000,000 0
85 355 34,667.00 5,600,000 80 ACT360
86 291 39,013.52 6,850,000 62
87 289 37,720.65 5,700,000 74 ACT360
88 348 33,755.82 6,250,000 66
89 360 34,325.55 6,000 000 68 ACT360
90 360 32,093.05 5,900,000 69 ACT360
91 355 31,640.00 6,200,000 64 ACT360
92 346 30,586.58 6,200,000 64
93 292 35,034.14 6,160,000 64
94 355 31,100.07 6,000,000 68
95 300 33,496.45 5,800,000 65 ACT360
96 360 28,748.75 5,750,000 63 ACT360
97 295 30,530.74 5,500,000 63
98 295 30,530.74 5,500,000 63
99 355 26,600.90 4,600,000 75 ACT360
100 294 29,540.41 4,450,000 76 ACT360
101 348 26,481.34 4,400,000 74
102 232 33,685.83 4,840,000 66 ACT360
103 150 34,723.00 4,800,000 65
104 277 25,521.71 4,100,000 74
105 360 24,082.58 4,225,000 72 ACT360
106 360 23,892.33 4,220,000 71 ACT360
107 268 28,079.09 5,900,000 51 ACT360
108 355 23,923.13 4,390,000 68
109 360 23,555.92 3,800,000 78 ACT360
110 360 23,417.17 4,750,000 62 ACT360
111 358 24,067.75 4,400,000 66 ACT360
112 350 23,157.40 4,075,000 70
113 240 26,909.39 4,800,000 58 ACT360
114 343 20,781.07 3,725,000 74
115 355 21,849.80 3,850,000 68
116 240 23,913.74 4,750,000 55 ACT360
117 265 23,174.66 3,650,000 69
118 239 23,927.12 6,230,000 40 ACT360
119 277 21,065.57 3,380,000 72
120 292 20,470.42 3,630,000 66
121 223 20,607.00 3,400,000 64
122 323 18,419.78 3,100,000 71
123 291 19,975.91 3,200,000 68
124 337 17,370.30 3,650,000 59
125 239 19,715.11 2,700,000 75 ACT360
126 235 19,102.09 3,475,000 57 ACT360
127 296 17,005.95 2,780,000 71 ACT360
128 340 14,852.42 2,650,000 71
129 298 15,249.96 3,400,000 55 ACT360
130 300 15,964.93 2,670,000 67 ACT360
131 284 14,192.10 2,450,000 72
132 355 13,722.08 2,750,000 64 ACT360
133 343 13,138.35 2,350,000 68
134 343 12,885.87 2,755,000 60
135 268 14,890.91 2,400,000 68
136 280 13,284.99 2,500,000 63
137 347 12,105.40 2,100,000 73
138 350 12,557.76 2,200,000 70
139 323 11,674.54 2,600,000 58
140 299 12,949.47 2,100,000 71 ACT360
141 297 13,168.07 3,000,000 50 ACT360
142 286 11,967.78 2,000,000 73
143 172 16,176.88 3,300,000 44
144 280 11,773.67 2,100,000 68
145 282 11,534.03 2,300,000 61
146 268 12,475.92 2,100,000 65
147 221 12,672.06 2,500,000 52
148 299 11,492.87 2,450,000 53 ACT360
149 225 12,082.48 1,670,000 76 ACT360
150 236 13,295.94 1,880,000 66 ACT360
151 226 12,230.15 1,900,000 63 ACT360
152 344 8,909.97 2,060,000 58
153 283 8,978.43 1,750,000 55
154 343 7,481.55 1,500,000 67
155 350 8,115.90 1,425,000 70
156 355 7,655.40 1,400,000 68
157 283 7,134.15 1,600,000 68
158 284 7,803.33 1,000,000 85
159 283 6,591.46 1,480,000 55
160 115 10,225.90 1,700,000 55
161 290 6,934.84 1,100,000 72
162 343 5,868.27 1,050,000 68
163 232 533,315.22 125,000,000 44 ACT360
<TABLE/>
</TABLE>
<TABLE>
<CAPTION>
CSFB97-C1 - MORTGAGE LOAN SCHEDULE - PART III (LOANS)
CUT-OFF SELLER LOCK-BOX SUBJECT
LOAN PROPERTY PRINCIPAL WW SERVICER DUE LOAN TYPE TO GROUND
NOS NAME BALANCE DSCR FEE DATE TYPE DEFEASANCE LEASE
- ---- -------- --------- ---- -------- ---- ---- -------- ---------- ------
<C> <S> <S> <S> <S> <S> <S> <S> <S> <S>
1 Schwegmann-Summary 68,058,865 1.34 .0800 01 Hyper Am Hard Yes Fee
2 D & D Building 62,934,415 1.21 .0000 01 Hyper Am Hard No Leasehold
3 Pan-Summary 54,019,659 1.34 .0000 01 Hyper Am Springing Yes Fee
4 Roosevelt Center 49,761,271 1.22 .0000 01 Hyper Am Hard Yes Fee
5 Prince George's Plaza 44,000,000 1.28 .0000 01 Hyper Am Hard Yes Fee
6 Quantum-Summary 41,566,432 .00 .0000 01 Balloon Hard No Fee
7 Fortunoff-Summary 41,109,836 .00 .0000 01 Fully Am Hard Yes Fee
8 Town & Country Hotel 39,000,000 1.37 .0000 01 Hyper Am Springing Yes Fee
9 Bruckner Plaza 38,869,224 1.33 .0000 01 Hyper Am Springing Yes Fee
10 The Paramount Building 37,773,212 1.36 .0000 10 Hyper Am Hard Yes Leasehold
11 Summit Bank 29,347,770 .00 .0000 01 Fully Am Hard Yes Fee
12 Las Americas V. Shopping 26,680,721 1.44 .0000 01 Hyper Am Springing Yes Fee
13 Broadway Square 25,650,756 1.29 .0800 01 Balloon Modified No Fee
14 Airlines Parking 22,143,035 1.44 .1200 01 Hyper Am Hard Yes Fee
16 Continental Develop-Summary 17,447,044 1.45 .0750 01 Hyper Am Hard Yes Fee
17 Portland-Summary 17,433,841 1.26 .0000 01 Hyper Am Springing Yes Fee
18 Tandy Corp Credit Lease 15,172,330 .00 .0000 01 Fully Am Hard Yes Fee
19 Radisson Suites 14,678,879 1.47 .0800 01 Hyper Am Hard Yes Fee
20 Hampshire Hotel 14,092,026 1.39 .0000 01 Hyper Am Hard Yes Fee
21 GF-Baltimore Sheraton 13,941,468 1.64 .0000 01 Hyper Am Modified Yes Fee
22 Fordham Road 13,245,330 1.38 .0000 01 Balloon Springing Yes Fee
23 Cottonwood Creek Mall 13,225,636 1.32 .0000 01 Hyper Am Hard Yes Fee
24 Crosshost-Summary 12,966,585 1.40 .0000 01 Hyper Am NO Yes Fee
25 Park City 3&4 Apartments 12,955,810 1.05 .0800 01 Balloon NO No Fee
26 Holyoke 12,460,806 1.34 .0000 10 Hyper Am Springing Yes Fee
27 Foothills Park Place 12,300,000 1.31 .0000 01 Hyper Am Springing Yes Fee
28 Brandy-Town & Country Apts. 11,696,489 1.22 .0000 01 Hyper Am Springing Yes Fee
29 Ford's Colony Country Club 10,933,966 1.26 .4000 01 Fully Am NO No Fee
30 422 Business Center 10,400,000 1.43 .0000 01 Hyper Am Modified Yes Fee
31 Austin Airport North Courtyard 10,000,000 1.44 .0000 01 Hyper Am Springing Yes Fee
32 Bass-Summary 9,974,101 1.18 .0000 01 Hyper Am Hard Yes Fee
33 173-175 Riverside Drive 9,799,686 1.06 .3700 01 Balloon NO No Fee
34 Regal Cinemas Multi-plex 9,473,684 .00 .0000 01 Hyper Am Hard Yes Fee
35 48 West 48th Street 9,272,766 1.42 .0000 01 Balloon NO No Fee
36 Ralphs - Olympic 9,187,234 1.53 .0000 01 Hyper Am Hard Yes Fee
37 TJ Maxx Plaza 9,142,784 1.24 .0000 01 Hyper Am Hard Yes Fee
38 Reseda Business Park 8,710,000 1.28 .0000 01 Hyper Am Springing Yes Fee
39 Holiday Inn Express 8,500,000 1.40 .0000 11 Hyper Am Springing Yes Fee
40 Plantation Residence 8,400,000 1.53 .0000 01 Hyper Am Springing Yes Fee
41 Carlsbad Plaza 8,200,000 1.48 .0000 01 Hyper Am NO Yes Leasehold
42 Ralphs-Victory 8,088,761 1.38 .0000 01 Hyper Am Hard Yes Fee
43 Key West Fairfield Inn 7,500,000 1.43 .0000 01 Hyper Am Springing Yes Fee
44 Hoyt-Summary 7,202,940 .00 .0000 01 Fully Am Hard No Fee
46 Bon-Ton Department Store 7,136,023 .00 .0000 01 Fully Am Hard No Fee
47 Kohl's Department Store 7,096,326 .00 .0000 01 Fully Am Hard Yes Leasehold
48 Mission Trace I 6,900,000 1.35 .0000 01 Hyper Am Springing Yes Fee
49 Builder's Square 6,828,592 1.33 .0000 01 Hyper Am Hard Yes Fee
50 Genus Inc. Building 6,528,513 1.59 .0000 01 Fully Am Hard Yes Fee
51 Zinn Retail-Summary 6,513,068 1.30 .0000 01 Hyper Am Springing Yes Fee
52 Bon-Ton Department Store 6,481,575 .00 .0000 01 Fully Am Hard No Fee
53 Blossom-Summary 6,082,886 1.28 .0000 01 Hyper Am Springing Yes Fee
54 Delphia-Pathmark 6,051,696 1.25 .0000 01 Hyper Am NO No Fee
55 Builder's Square 6,031,408 1.33 .0000 01 Hyper Am Hard Yes Fee
56 Austin Northwest Residence 6,000,000 1.61 .0000 01 Hyper Am Springing Yes Fee
57 Personal Self Storage Inn 5,997,918 1.50 .0000 01 Hyper Am Hard Yes Fee
58 Washington Park Apartments 5,863,070 1.33 .0000 01 Balloon NO No Fee
59 2-20 East Fordham Road 5,746,743 1.38 .0000 01 Balloon NO No Fee
60 GF-Richmond Hilton 5,676,169 1.31 .0000 01 Hyper Am Modified Yes Fee
61 Vernon-Pathmark 5,659,824 1.29 .0000 01 Hyper Am NO No Fee
62 Foothills Oaks Shopping Center 5,650,000 1.32 .0000 01 Hyper Am Springing Yes Fee
63 Houston Galleria 5,600,000 1.57 .0000 01 Hyper Am Springing Yes Fee
64 Cimmering-Summary 5,397,076 1.31 .0000 01 Hyper Am Springing Yes Fee
65 Hartz Mountain 5,390,704 1.06 .0000 01 Balloon NO No Fee
66 North Rodeo Drive 5,380,867 1.29 .1700 01 Hyper Am Springing Yes Fee
67 Borders Books and Music 5,138,454 .00 .0000 01 Fully Am Hard Yes Leasehold
68 Brandy-Northwood Oaks 5,106,985 1.21 .0000 01 Hyper Am Springin Yes Fee
69 White Sands Mall 5,084,588 1.34 .0000 01 Balloon Hard No Fee
70 Holiday Inn Express-Exton 5,049,000 1.34 .0000 01 Hyper Am Springin Yes Leasehold
71 Best Western Virginia 5,033,013 1.39 .0000 01 Hyper Am Hard Yes Fee
72 Bon-Ton Department Store 5,002,685 .00 .0000 01 Fully Am Hard No Fee
73 Doheny Village Center 5,000,000 1.27 .0000 01 Hyper Am Springin Yes Fee
74 The Village at San Luis Obispo 4,967,043 1.59 .2500 01 Balloon NO No Fee
75 Builder's Square 4,830,000 1.33 .0000 01 Hyper Am Hard Yes Fee
76 El Camino Center 4,750,000 1.24 .0000 01 Hyper Am Springin Yes Fee
77 Townhouses of Plantation 4,693,572 1.28 .0000 01 Balloon NO No Fee
78 Windsong Apartments 4,565,037 1.66 .2000 01 Fully Am NO No Fee
79 Austin Northwest Courtyards 4,500,000 1.52 .0000 01 Hyper Am Springin Yes Fee
80 Rosewood Village Shopping Ctr 4,486,168 1.39 .0000 01 Hyper Am Springin Yes Fee
81 Peppertree Apartments - 2 4,465,492 1.31 .0000 01 Balloon NO No Fee
82 750 Walnut 4,457,716 1.72 .0000 01 Balloon NO Yes Fee
83 Delchamps Plaza 4,416,746 1.28 .0000 01 Hyper Am Springin Yes Fee
84 Bon-Ton Department Store 4,373,786 .00 .0000 01 Fully Am Hard No Fee
85 Brandy-Providence Plaza 4,309,019 1.21 .0000 01 Hyper Am Springin Yes Fee
86 Hawkin-Pathmark 4,265,950 1.45 .0000 01 Hyper Am NO No Fee
87 Baytower Corporate 4,217,454 1.10 .0000 01 Balloon NO No Fee
88 Park on Bandera 4,130,166 1.47 .0000 01 Balloon NO No Fee
89 Plaza de la Fiesta I 4,100,000 1.28 .0000 01 Hyper Am Modified Yes Fee
90 Kinnelon Mall 4,050,000 1.21 .0000 01 Hyper Am Springin Yes Fee
91 Quail Ridge Center 3,989,441 1.38 .0000 01 Hyper Am Springin Yes Fee
92 The Hamlet Apartments 3,964,039 1.45 .0800 01 Balloon NO No Leasehold
93 Soho-Summary 3,950,000 1.30 .0000 01 Balloon Springing No Fee
94 Gat-Rancho Del Oro 3,888,962 1.24 .0000 01 Balloon NO No Fee
95 Comfort Inn 3,750,000 1.38 .0000 01 Hyper Am Modified Yes Fee
96 Wendland Plaza 3,601,895 1.47 .0000 01 Hyper Am Springin Yes Fee
97 GF-Philadelphia Holiday Inn 3,485,367 1.32 .0000 01 Hyper Am Modified Yes Fee
98 GF-North Haven Holiday Inn 3,485,367 1.62 .0000 01 Hyper Am Modified Yes Fee
99 Los Verdes 3,440,281 1.27 .1250 01 Hyper Am NO No Fee
100 Plaza Riviera 3,371,617 1.05 .0000 01 Balloon NO No Fee
101 Pine Cove Apartments 3,277,316 1.27 .1250 01 Balloon NO No Fee
102 Glastonbury Country Club 3,170,625 1.24 .4000 01 Fully Am NO No Fee
103 Gloversville 3,132,822 1.20 .0000 01 Balloon NO No Fee
104 Belltowne Apartments 3,039,492 1.43 .0000 01 Balloon NO No Fee
105 Delchamps Plaza 3,028,169 1.28 .0000 01 Hyper Am Springin Yes Fee
106 Country Club Plaza 3,004,240 1.28 .0000 01 Hyper Am Springin Yes Both
Fee/Lease
107 Woolworth Center 2,994,904 1.76 .0000 01 Hyper Am NO Yes Fee
108 Gat-Palm Promenade 2,991,509 1.24 .0000 01 Balloon NO No Fee
109 Choctaw Plaza 2,951,288 1.24 .0000 01 Hyper Am NO Yes Fee
110 Alexander Plaza 2,933,905 1.25 .0000 01 Hyper Am Springin Yes Fee
111 538 Madison 2,918,125 1.24 .0000 01 Hyper Am Springin Yes Fee
112 Park Place Apartments 2,836,709 1.65 .1000 01 Balloon NO No Fee
113 Village Inn 2,800,000 1.52 .0000 01 Hyper Am Hard Yes Fee
114 Ocotillo Apartments 2,746,972 1.44 .1750 01 Balloon NO No Fee
115 Gat- East County Square 2,732,245 1.24 .0000 01 Balloon NO No Fee
116 Hampton Inn-Robinsonville 2,600,000 1.49 .0000 01 Hyper Am Springin Yes Fee
117 Jefferson Oaks 2,510,761 1.28 .2000 01 Fully Am NO No Fee
118 Woodbridge Jewelry 2,497,342 2.82 .0000 01 Balloon NO No Fee
119 Seabrook Apartments 2,444,687 1.48 .0000 01 Balloon NO No Fee
120 West End Plaza 2,382,985 1.29 .0000 01 Balloon NO No Fee
121 Dali Travel 2,191,532 1.37 .0000 01 Balloon NO No Fee
122 Rustic Ridge Apartments 2,189,530 1.34 .0000 01 Balloon NO No Fee
123 Two Corporate Place 2,184,544 1.28 .0000 01 Balloon NO No Fee
124 The Willows Apartments 2,168,678 1.94 .1250 01 Balloon NO No Fee
125 Days Inn (Lake Charles) 2,022,804 1.39 .0000 01 Hyper Am Springing Yes Fee
126 Orchid 1,986,894 1.39 .0000 01 Balloon NO Yes Fee
127 Public Storage 1,974,158 1.28 .0000 01 Hyper Am NO Yes Fee
128 Papago Springs Apartments 1,876,226 1.33 .1550 01 Balloon NO No Fee
129 Inducon Amherst 1,871,873 1.59 .0000 07 Hyper Am Springing Yes Both
Fee/Lease
130 St Augustine Self Storage 1,800,000 1.30 .0000 01 Hyper Am NO Yes Fee
131 Cabana Park Apts. 1,769,378 1.37 .2000 01 Balloon NO No Fee
132 Brandy-Quincy Plaza 1,752,204 1.45 .0000 01 Hyper Am Springin Yes Fee
133 Peppertree Apartments - 1 1,741,491 1.35 .0000 01 Balloon NO No Fee
134 Pennytree Apartments 1,653,860 1.57 .2500 01 Balloon NO No Fee
135 Shaker West Apartments 1,623,199 1.38 .0000 01 Fully Am NO No Fee
136 Casa Valencia 1,568,692 1.59 .0000 01 Balloon NO No Fee
137 Holridge Apartments 1,537,689 1.24 .1250 01 Balloon NO No Fee
138 Gallery Apartments 1,531,562 1.52 .1500 01 Balloon NO No Fee
139 Stanford Court 1,515,306 1.53 .1600 01 Balloon NO No Fee
140 Carson Highlands Self Storage 1,499,128 1.36 .0000 01 Hyper Am Hard Yes Fee
141 603 6th Avenue 1,497,119 1.40 .0000 01 Balloon Springing Yes Fee
142 Yorktown Apartments 1,468,729 1.54 .1250 01 Balloon NO No Fee
143 1261-67 Forest Avenue 1,451,362 1.55 .0000 01 Balloon Springing No Fee
144 Fieldside Apartments 1,420,395 1.79 .0000 01 Balloon NO No Fee
145 Annhurst Apartments 1,403,583 1.51 .0000 01 Balloon NO No Fee
146 Shaker North Apartments 1,359,951 1.77 .0000 01 Fully Am NO No Fee
147 Villa Bella Care 1,311,750 1.90 .0000 01 Fully Am NO No Fee
148 Valley West Plaza 1,303,298 1.37 .0000 01 Hyper Am NO Yes Fee
149 Gardena Terrace Inn 1,267,343 1.21 .0000 01 Balloon NO No Fee
150 Ocean Meadows Golf 1,244,488 1.32 .4000 01 Fully Am NO No Fee
151 Best Western-Bremen 1,203,514 1.51 .0000 15 Hyper Am Hard No Fee
152 University Center 1,186,782 1.85 .1800 01 Balloon NO No Fee
153 Winkler Villa Apartments 1,100,019 1.58 .0000 01 Balloon NO No Fee
154 Orange Sussex 998,080 1.49 .1250 01 Balloon NO No Fee
155 Whispering Oaks Apartments 992,007 1.65 .1250 01 Balloon NO No Fee
156 Stone Crest Plaza 957,283 1.24 .0000 01 Balloon NO No Fee
157 Twin Oaks Apartments 894,267 1.35 .0000 01 Balloon NO No Fee
158 Fe L. Higgins 847,707 1.94 .0000 01 Balloon NO No Fee
159 Pecan Shadows Apartments 803,659 1.58 .0000 01 Balloon NO No Fee
160 Granada Terrace Apartments 792,601 1.58 .0000 01 Balloon NO No Fee
161 Oakdale Apartments 788,219 1.26 .2500 01 Balloon NO No Fee
162 Croix Apartments 777,839 1.35 .0000 01 Balloon NO No Fee
163 Hyatt Aruba 54,456,214 1.95 .2500 10 Hyper Am Modified No Leasehold
</TABLE>
TOTAL 1,356,228,736
EXHIBIT C
--------------------
FORM OF INVESTMENT REPRESENTATION LETTER
The Chase Manhattan Bank,
as Trustee
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Structured Finance Services (MBS)
Credit Suisse First Boston Mortgage
Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp
Commercial Mortgage Pass-Through Certificates, Series 1997-C1
---------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling
and Servicing Agreement dated as of June 1, 1997 (the "Pooling and Servicing
---------------------
Agreement"), by and among Credit Suisse First Boston Mortgage Securities
- ---------
Corp., as Depositor, First Union National Bank, as Servicer, Lennar Partners,
Inc., as Special Servicer, and The Chase Manhattan Bank, as Trustee on behalf
of the holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") in connection with the transfer by _________________ (the
------------
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
------ ---------
Certificate Balance of Class ___ Certificates (the "Certificate").
-----------
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of
---------
1933, as amended (the "1933 Act"). The Purchaser is aware that the transfer
--------
is being made in reliance on Rule 144A, and the Purchaser has had the
opportunity to obtain the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a)
for investment for the Purchaser's own account or (b) for resale to qualified
institutional buyers' in transactions under Rule 144A, and not in any event
with the view to, or for resale in connection with, any distribution thereof.
The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
----------------------------
agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement
Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered
or qualified under the 1933 Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such
registration or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner
of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
-----------------
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion
of the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
7. Check one of the following:/F1/
/ / The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9
---
(or successor form).
/ / The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) or the Paying Agent
with respect to distributions to be made on the Certificate.
The Purchaser has attached hereto either (i) a duly
_______________
/F1/ Each Purchaser must include one of the two alternative certifications.
executed IRS Form W-8 (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and
states that such Purchaser is not a U.S. Person or (ii) two
duly executed copies of IRS Form 4224 (or successor form),
which identify such Purchaser as the beneficial owner of the
Certificate and state that interest and original issue
discount on the Certificate and Permitted Investments is, or
is expected to be, effectively connected with a U.S. trade or
business. The Purchaser agrees to provide to the Certificate
Registrar updated IRS Forms W-8 or IRS Forms 4224, as the case
may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation, partnership or
other entity created or organized in or under the laws of the United States
or any of its political subdivisions, or an estate the income of which is
subject to U.S. federal income taxation regardless of its source or a trust
if (A) for taxable years beginning after December 31, 1996 (or for taxable
years ending after August 20, 1996, if the trustee has made an application
election), a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more United
States fiduciaries have the authority to control all substantial decisions of
such trust, or (B) for all other taxable years, such trust is subject to
United States federal income tax regardless of the source of its income.
8. If the Certificate is a Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I, Class J or Class K Certificate, the
Purchaser is not (a)(i) an employee benefit plan subject to the fiduciary
responsibility provisions of ERISA, (ii) or Section 4975 of the Code or (iii)
a governmental plan, as defined in Section 3(32) of ERISA, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
-----------
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or
----
(b) a person acting on behalf of or using the assets of any such plan
(including an entity whose underlying assets include plan assets by reason of
investment in the entity by such Plan and the application of Department of
Labor Regulation Section 2510.3-101, other than an insurance company using
assets of its general account under circumstances whereby the purchase and
holding of such Certificates by such insurance company (i) would be exempt
from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Class Exemption 95-60.
9. If the Certificate is a Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I, Class J or Class K Certificate, the
Purchaser understands that if the Purchaser is a Person referred to in 8(a)
or (b) above, an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the
prohibited transaction provisions of the Code or the provisions of any
Similar Law (without regard to the identity or nature of the Holders of
Certificates of any Class), will not constitute or result in a "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Servicer, the Special Servicer, the Extension Advisor, the
Underwriter or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any
such Similar Law in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be at the expense of
the Depositor, the Servicer, the Special Servicer, the Trustee or the Trust
Fund.
Very truly yours,
---------------------------------------------
(The Purchaser)
By:
----------------------------------------
Name:
Title
Dated: __________
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(E)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED
STATE OF )
) SS:
COUNTY OF )
(NAME OF OFFICER), being first duly sworn, deposes and says:
1. That (he) (she) is (Title of Officer) of (Name of Transferee)
(the "Transferee"), a (description of type of entity) duly organized and
----------
existing under the laws of the (State of __________) (United States), on
behalf of which he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is ( ).
3. That the Transferee of a Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificate, Series
1997-C1, Class (R) (LR) Certificate (the "Class (R) (LR) Certificate") is not
--------------------------
Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), an ERISA Prohibited
-----
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
-------------------------
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject
to tax and, majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code and (v) any other Person so
designated by the Servicer based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Residual Certificate by such Person may cause
either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
------------- ----- --------------------------
meanings set forth in Section 7701 of the Code or successor provisions. For
these purposes, "ERISA Prohibited Holder" means an employee benefit plan
-----------------------
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or section 4975 of the Code or any governmental plan (as
-----
defined in Section 3(32) of ERISA) subject to any federal, state or local law
which is, to a material extent, similar to the foregoing provisions of ERISA
or the Code (each, a "Plan") or a person acting on behalf of or investing the
----
assets of such a Plan. For these purposes, "Non-U.S. Person" means any
---------------
person other than a U.S. Person, unless, with respect to the Transfer of a
Residual Certificate, (i) such person holds such Residual Certificate in
connection with the conduct of a trade or business within the United States
and furnishes the Transferor and the Certificate Registrar with an effective
Internal Revenue Service Form 4224 or (ii) the Transferee delivers to both
the Transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that such Transfer is in accordance with
the requirements of the Code and the regulations promulgated thereunder and
that such Transfer of the Residual Certificate will not be disregarded for
federal income tax purposes.
4. That the Transferee historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Transferee intends to pay taxes associated with holding the Class (R)
(LR) Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class (R) (LR) Certificate in excess of any
cash flow generated by the Class (R) (LR) Certificate.
6. That the Transferee agrees not to transfer the Class (R) (LR)
Certificate to any Person or entity unless (a) the Transferee has received
from such Person or entity an affidavit substantially in the form of this
Transfer Affidavit and (b) the Transferee provides to the Certificate
Registrar a letter substantially in the form of Exhibit D-2 to the Pooling
and Servicing Agreement certifying that it has no actual knowledge that such
Person or entity is a Disqualified Organization or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in
paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling
and Servicing Agreement dated as of June 1, 1997 among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, First Union National Bank, as
Servicer, Lennar Partners, Inc., as Special Servicer, and The Chase Manhattan
Bank, as Trustee, (the "Pooling and Servicing Agreement"), as may
-------------------------------
be required to further effectuate the restrictions on transfer of the Class
(R) (LR) Certificate to such a Disqualified Organization or an Agent thereof,
an ERISA Prohibited Holder or a Non-U.S. Person. To the extent not defined
herein, the capitalized terms used herein shall have the meanings assigned
thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated
with respect to the (Upper-Tier REMIC) (Lower-Tier REMIC), the Transferee
agrees to act as "tax matters person" and to perform the functions of "tax
matters person" of the (Upper-Tier REMIC) (Lower-Tier REMIC) pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and agrees to the
irrevocable designation of the Servicer as the Transferee's agent in
performing the function of "tax matters person."
9. The Transferee has reviewed, and agrees to be bound by and to
abide by, the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class (R)
(LR) Certificates.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its (Title of Officer) this _____ day of
__________, 19__.
(NAME OF TRANSFEREE)
------------------------
By:
-----------------------------------
(Name of Officer)
(Title of Officer)
Personally appeared before me the above-named (Name of Officer),
known or proved to me to be the same person who executed the foregoing
instrument and to be the (Title of Officer) of the Transferee, and
acknowledged to me that he (she) executed the same as his (her) free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 19__.
- ----------------------------------------------------------------
NOTARY PUBLIC
COUNTY OF _________________________
STATE OF _________________________
My commission expires the ___ day of __________, 19__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
(Date)
The Chase Manhattan Bank,
as Trustee
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Structured Finance Services (MBS)
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1997-C1
----------------------------------------------------------------
Ladies and Gentlemen:
(Transferor) has reviewed the attached affidavit of (Transferee),
and has no actual knowledge that such affidavit is not true and has no reason
to know that the requirements set forth in paragraphs 3 and 4 thereof are not
satisfied or that the information contained in paragraphs 3 and 4 thereof is
not true.
Very truly yours,
(Transferor)
---------------------------------------
EXHIBIT E
(RESERVED)
EXHIBIT F
FORM OF REQUEST FOR RELEASE
__________(Date)
The Chase Manhattan Bank, as Trustee
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Structured Finance Services (MBS)
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1997-C1,
REQUEST FOR RELEASE
------------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing
Agreement dated as of June 1, 1997 (the "Pooling and Servicing Agreement"),
-------------------------------
by and among Credit Suisse First Boston Mortgage Securities Corp., as
depositor, (the undersigned, as servicer (the "Servicer"), Lennar Partners,
--------
Inc., as special servicer,) (First Union National Bank, as servicer, the
undersigned, as special servicer (the "Special Servicer"),) and you, as
----------------
trustee, the undersigned 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 Loan for the reason indicated below.
Mortgagor's Name: ___________________________________________________________
Address: ____________________________________________________________________
Loan No.: __________________________________________________________________
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting file (or portion thereof):
______1. Loan paid in full. The (Servicer) (Special Servicer)
hereby certifies that all amounts received in connection
with the Loan have been or will be credited to the
Certificate Account pursuant to the Pooling and Servicing
Agreement.
______2. The Loan is being foreclosed.
______3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently, or unless the 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.
(SERVICER) (SPECIAL SERVICER)
By:
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT G
(RESERVED)
EXHIBIT H
(RESERVED)
EXHIBIT I
FORM OF SERVICER REPORTS
(Available from Depositor)
EXHIBIT J
(RESERVED)
EXHIBIT K
FORM OF LOST NOTE AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
___________________________, ____________________, being duly
sworn, deposes and says:
1. that he is an authorized signatory of Credit Suisse First Boston
Mortgage Capital LLC ("CSFB");
2. that CSFB is the owner and holder of a Mortgage Loan in the
original principal amount of $__________ secured by a mortgage (the
"Mortgage") on the premises known as __________ __________ located in
__________;
3. (a) that CSFB, after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note
and believes that said original Note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a Note in the original sum of $__________ made by __________, to
CS First Boston Mortgage Capital Corp., under date of __________
(the "Note");
4. that the Note is now owned and held by CSFB;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise
disposed of and that the original Note has been either lost, misfiled,
misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except CSFB;
7. upon assignment of the Note by CSFB to Credit Suisse First Boston
Mortgage Security Corp. (the "Depositor") and subsequent assignment by
Depositor to the Trustee for the Benefit of the Holders of the Commercial
Mortgage Pass-Through Certificates, Series 1997-C1 (the "Trustee") (which
assignment may, at the discretion of the Depositor, be made directly by CSFB
to the Trustee) CSFB covenants and agrees (a) promptly to deliver to the
Trustee the original Note if it is subsequently found, and (b) to indemnify
and hold harmless the Trustee and its successors and assigns from and against
any and all costs, expenses and monetary losses arising as a result of CSFB's
or Depositor's failure to deliver said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:_______________________
Authorized Signatory
Sworn to before me this
_____ day of ________.
